several other ―essential functions,‖ BBOs were required to ―call on customers and/or prospects.‖
were expected to use a ―high degree of creativity and
independence in managing account relationships and deve
loping new business.‖
This job description was essentially unchanged until May 2002, shortly after the complaint here was filed. The new job description splits the list of
essential functions into separate categories
Activity to Outside Sales,‖ and ―Other Activity,‖
and specifies that
more than 80 percent of a BBO‘s time should be spent on ―Outside Sale
During all relevant times, USB has classified the BBO position as exempt from overtime compensation, primarily based on the outside salesperson exemption in Labor Code section 1171.
On December 26, 2001, a putative class action complaint was filed alleging USB had improperly classified BBOs as exempt, denying them overtime pay in violation of Labor Code section 1194.
Class counsel later replaced the original named plaintiff with three new class representatives. In March 2005, when dueling certification motions were pending, counsel replaced these representatives with the two currently named plaintiffs, Samuel (Sam) Duran and Matt Fitzsimmons. All replaced representatives had testified in deposition that they spent more than 50 percent of their workday engaged in sales activities
USB offices, which would have brought them within the exemption.
Labor Code section 1171 states that statutes governing wages, hours, and working conditions
, including the requirement of overtime pay, ―shall
apply to and include men, women and minors employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise,
but shall not include any individual employed as an outside salesman
. . . .‖
Plaintiffs alleged the same conduct also violated Business and Professions Code section 17200 and constituted conversion.
The original named plaintiff, Amina Rafiqzada, was replaced in February 2003. A little over two months later, Rafiqzada testified that she spent