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Ecolab Exterminators Score Initial Cert. In OT Suit

Law360—Beth Winegarner

A California federal judge on Friday conditionally certified a class of about 1,000 Ecolab Inc. exterminators who claim the company wrongly deprived them of overtime pay even though they routinely worked more than 40 hours a week removing pests from restaurants and hotels.

U.S. District Judge Charles Breyer granted the motion without taking oral argument, saying the plaintiffs' motion met the “rather lenient” standard for conditional certification. He also ordered Ecolab to hand over the workers' contact information, but did not allow the plaintiffs to collect prospective class members' Social Security numbers, saying that “having them floating around is not such a good idea.”

Ecolab objected to the motion, arguing that under the Fair Labor Standards Act certain employees are exempt from overtime pay if they receive “bona fide” commission payments and are paid at least 1 1/2 times the minimum wage for all the hours they work in a week involving overtime hours, and that there remains a debate over whether the service specialists in Ecolab's pest-control unit received that type of pay.

“The defenses you raise may be appropriate at a later date in a motion to decertify the class, but not now,” Judge Breyer told the defendants.

The conditional class includes roughly 1,000 employees who worked as service specialists in Ecolab's pest-elimination division between Oct. 12, 2010, and the present, and who worked in any state other than California, Connecticut, Massachusetts or New Jersey, according to the motion.

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Nick Cancilla sued Ecolab last June, alleging that the company unlawfully classified him and other service specialists as exempt from overtime pay, and then failed to pay them when they worked more than 40 hours a week or when they worked through meal periods and other breaks.

Cancilla, who worked for Ecolab from September 2008 through August 2010, claims that the company's practices violate both California law and the FLSA.

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