by Brian Mahany
Recently we have seen a spate of complaints against mortgage brokers and lenders. And its not just our office that is seeing the spike in claims. Nationally, since the financial meltdown of 2008, the number of overtime suits has increased by 37%. Many Americans have been pushed to the brink of insolvency. Employers are demanding longer hours and often for less pay. With massive layoffs in some businesses, workers are often asked to do the job of several different people. Some of these workers are fighting back.
Two such folks that are fighting back are Steve Swisher and Scott Finger. Both worked as loan officers for MetLife Home Loans, a division of MetLife Bank. Both say they were wrongfully denied overtime.
According to their complaint, a class action complaint filed on behalf of other loan officers, MetLife pays their loan officers on a draw against commission basis typical in the industry. Both men worked longer than 40 hours per week, although MetLife considered them “exempt” meaning no overtime.
Like many sales related positions, MetLife expected its loan officers to meet certain production goals. With less help and high goals, that usually meant working Saturdays and nights. Swisher says his manager told him to do “whatever it took to get the job done” including long hours.
Swisher and Finger say they are entitled to overtime. They claim that MetLife willfully misclassified them as exempt in order to deny them overtime. We have found that some employers manipulate the job description to make it look like workers are exempt. Often courts will look at the actual duties of the employee and not the job description, particularly if the job description is inaccurate.
Obviously, MetLife has denied the allegations. The case has bounced around the United States and is now awaiting an attempt by the parties to resolve the claims through court sanctioned alternate dispute resolution.
With many loan officers working 50and 60 hour work weeks and many employers trying to avoid overtime by creating false or contrived job descriptions, the cases aren’t likely to stop anytime soon. Some courts have begun ruling in favor of the lender although each case is very fact specific. The Department of Labor has generally sided with the loan officers, underwriters and processors and not with employers.
If you thing you have been denied overtime paid or are a branch manager / loan officer forced to pay branch charges (rent, lead generation costs, overhead, etc), give us a call. Frequently overtime pay violations involve both violations of the federal Fair Labor Standards Act and the False Claims Act.
Why the False Claims Act (whistleblower law)? Pushing costs on to branch managers or misclassifying loan officers as independent contractors is often a violation of HUD rules. Forcing costs on managers and denying loan officers proper pay often makes for cut corners and riskier loans. With whistleblowers entitled up to 30% of whatever the government collects, the stakes are high for banks and lenders but only when employees understand their rights and speak up.
Mahany & Ertl – America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine; Minneapolis, Minnesota and San Francisco, California.
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