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July 21, 2001
Calif. Lawyer Angers Employers, Again
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sh from being demoted for writing an unpopular opinion on the exempt status of workers, Miles Locker, the chief counsel for the California Division of Labor Standards Enforcement, is under fire from employers again.

The Recorder, a California law journal, reports that the latest dispute centers - just like the first one - on Locker's interpretation of the state's new overtime statute, which went into effect in January.

The first controversy, involving his interpretation of the state's salary-based exemption rule, resulted in protests from business interests and employment lawyers. That in turn led to his demotion from chief counsel at Labor Standards Enforcement by Gov. Gray Davis. In addition, the opinion was rescinded.

His name has since become almost synonymous with wage and hour battles in California, according to The Recorder.

This time Locker's troubles involve a decision he made regarding the alternative work week - a discretionary work schedule that gives workers the option of working no more than 10 hours a day for four days a week.

In late May, San Diego energy producer Solar Turbines Inc. sued to overturn the decision after it was notified by the DLSE that the scheduling structure for workers at its Taft power manufacturing plant violated state law.

That law, Locker said, requires that companies not schedule workers for more than 10 hours a day or 40 hours a week.

Solar Turbines lawyer John Zaimes called that interpretation "completely wrong."

Zaimes's reading of the law: Employees can opt to work the alternative schedule and receive overtime pay for any hours over 10 as long as they don't exceed 12 hours.

But he says Locker interprets the law to mean that no employee can work more than 10 hours in a day - period.

While the Industrial Welfare Commission - the state agency charged with interpreting wage and hour laws - approved the 12-hour standard, Zaimes says his client received a notice from the Division of Labor Standards Enforcement anyway stating that the company would be prosecuted for not paying appropriate overtime.

"The IWC says I'm right, and Locker says I'm wrong," said Zaimes, who chairs the labor and employment group at Weston Benshoof Rochefort Rubalcava & MacCuish in Los Angeles.

"We want a judge to look at this to tell us what the right interpretation is," he added.

Locker, who still holds his post until Oct. 1, told The Recorder that he would love to comment on the issue, but instead referred all questions to Assistant Chief Counsel Anne Hipshman, the lead attorney on the case for the DLSE.

Hipshman said Zaimes is mistaken because although the law allows employees to vote to work an alternative schedule, the plan can't exceed 10 hours a day. While employees are allowed to work more than 10 hours a day and receive overtime, they can't be scheduled to do so on a regular basis. Under the statute, only health care workers are exempt from the 10-hour day.

To view the Recorder story, click here.
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