Anatomy of a financial services wage and hour lawsuit

Are financial advisers, stock brokers and mortgage loan officers fall FLSA exempt employees? or non-exempt inside-sales employees? Why is there an issue?

There is an issue because financial services professionals (FP) arguably do not meet the conditions for any of the standard overtime exemptions.

For instance, many FPs such as stock brokers are alleged to be not eligible for an administrative OT exemption because they their primary duty involves the sales of financial products. However, the may not fit the sales exemption under FLSA or state labor law because the typical FP, like a stock broker, is not involved in outside or retail sales which the exemption typically applies to in other settings. Furthermore, many FP positions do not require a professional degree of any sort so the professional exemption is typically ruled out.

The DOL has issued some opinion letters on the issue. However they have not completed cleared up the issue. Click here for more of discussion of the recent DOL opinion letters.

Damages issues:

1. According, the misclassification claim opens up the defendant to both OT and possibly minimum wage violations. Many financial professionals work many hours and if they only received a minimum stipend then in a given period there may


2. Common to see allegations and class certification motions in federal and state court in a single case. The key difference is that the Federal court claims are opt-in. The opt-in requirement of Federal court cases mean that to be entitled to the remedy, the individuals must agree to be a part of the lawsuit. The damages accordingly start from the date in which the individual opts in to the lawsuit.

3. In opt-out cases, which tend to be state collective actions the employee must opt-out of the class. Damages then begin on the date the lawsuit is filed.