Karen Kidd Aug. 12, 2016, 1:16pm

SAN FRANCISCO – A Sunnyvale company facing a lawsuit by one of its field service engineers for allegedly not paying him overtime wages will have a difficult time defending itself if the employee's legal counsel's assessment of the case plays out.

"Field service engineers repeatedly have been found by the courts and the Department of Labor to be nonexempt and are, therefore, qualified for overtime," Daniel S. Brome, an associate at Nichols Kaster in San Francisco, said during a Northern California Record telephone interview.

Brome is a member of the National Wage and Hour Litigation team at Nichols Kaster. The firm counts a number of Fair Labor Standards Acts wins among its cases, including those for field service engineers.

The field service engineer in this case, Higginbotham v. Cepheid, Stuart Higginbotham, filed his proposed class action on July 11 in the U.S. District Court for the Northern District of California against Cepheid. The company describes itself as a leading molecular diagnostics company that develops, manufactures and markets accurate but easy to use molecular systems and tests.

Cepheid's failure to provide him and others like him with proper compensation, as required by federal wage and hour laws, is a violation of the Fair Labor Standards Act, the Magnolia, Delaware man's lawsuit said.

Northern California Record requests to Cepheid for comment were not returned.

Higginbotham was employed as a field service engineer for Cepheid from about October 2014 through June, working out of his home and assigned to the company's mid-Atlantic region for the surrounding states, according to the lawsuit. During that time, Higginbotham claims he frequently worked more than 40 hours per week, including the workweek ending Feb. 5, when he clocked about 52.5 hours, without receiving overtime compensation.

Cepheid classifies its field service engineers as exempt from the FLSA’s overtime protections and did not keep accurate records of all the hours Higginbotham and other field service engineers worked, according to the lawsuit.

"Defendant was aware, or should have been aware, that plaintiff and the similarly situated field service engineers performed non-exempt work that required payment of overtime compensation," the lawsuit says. "For instance, defendant knew that plaintiff and similarly situated field service engineers worked overtime hours because defendant assigned them their work and required them to work long hours to complete all of their job duties and responsibilities."

Higginbotham is asking for a jury trial, all unpaid overtime wages, liquidated damages, interest, all legal fees and any other relief as the court deems just.

Brome didn't predict what avenues of defense Cepheid's legal counsel might employ in this case.

"You know, I don't know," he said. "Their pleadings are due next week, so we'll see then."

Brome regularly represents clients in wages claims as an attorney with Nichols Kaster, which lists many of its employment cases on its website. For instance, the firm filed a complaint last summer on behalf of field service specialists against Abbott Laboratories, alleging the company violated the FLSA when it failed to overtime compensation.

Nichols Kaster also was on the winning side of the 2011 case before the U.S. Supreme Court, Kasten v. Saint-Gobain Performance Plastics Corp., which resulted in the U.S. Department of Labor issuing fact sheet that says the FLSA prohibits workplace retaliation.

This past May, the U.S. Department of Labor announced a new rule that will require employers to pay white collar workers overtime if they earn $47,476 or less a year. That's more than twice the present rule of $23,660 earned per year by "exempt" employees. Employees "exempt" from overtime differ from manual laborers and other nonexempt employees who are legally required to be paid overtime at all earnings levels.

These DOL revisions to the FLSA also set up automatic updating salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

The new rule is set to become effective Dec. 1.

Brome would not say whether he thought the court would rule in Higginbotham's favor.

"I hope so," he said.

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