Two GNC managers fight ban on overtime

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Faced with 50, 60 or 70 hours per week of work, but just 40 hours of pay, two General Nutrition Centers managers complained and were fired, according to a lawsuit they filed Friday in U.S. District Court.

The complaint filed by Jonathan Lemiska, 30, of Laurence Harbor, N.J., and Dietrich Blickenderfer, 41, of Columbia, Md., echoes a broader legal challenge to GNC's alleged ban on overtime, and reflects a chronic issue in the retail industry.

Mr. Lemiska, according to the complaint, was hired by GNC in 2006 and from 2009 through 2011 was working 10 to 20 hours of overtime a week. A new boss barred him from clocking in for more than 40 hours per week.

Mr. Lemiska clashed with management about the need to pay other workers for extra time, according to the lawsuit. He complained to the Human Resources Department, and was then fired for insubordination, according to the complaint.

Mr. Blickenderfer started at GNC in 2006 and was ordered in 2008 to stop clocking overtime, according to the complaint. "GNC kept reducing the number of labor hours that it budgeted for Blickenderfer's store," while at the same time increasing sales expectations, plaintiffs attorney Adrian Roe wrote.

Starting in 2009, Mr. Blickenderfer worked 70-hour weeks, but recorded only 40 hours worked, according to the complaint. In meetings and conversations with bosses, he suggested that "GNC's expectations were wrong and illegal," Mr. Roe wrote.

Mr. Blickenderfer's store was audited, and he was terminated over paperwork issues that Mr. Roe alleged were a pretext for a firing driven by his complaints.

"The Fair Labor Standards Act prohibits firing someone for filing a complaint regarding a matter protected by the law," said Mr. Roe. "So if you come in and say, 'You are required to pay me overtime, and I think it's wrong that you are refusing to pay me overtime,' that is protected" by the act.

Mr. Roe said the two remain unemployed. They want their jobs back, compensation for lost wages plus a penalty, and payment for pain and suffering.

A GNC spokeswoman said the company doesn't comment on litigation.

The complaint is assigned to U.S. District Judge Terrence F. McVerry. He also is handling a 2010 case filed by Mr. Roe against the Pittsburgh-based health products retailer.

In that case, two other former store managers alleged that they were fired for "time fraud" after they added hours to time cards to make up for off-the-clock work.

Judge McVerry ruled that they couldn't pursue retaliation claims. He conditionally certified class action counts, though, and more than 400 current or former GNC managers have opted into the case, alleging that they weren't paid overtime.

Such allegations are common in the retail industry.

"The management of the companies tell the stores ... 'You can't go over X number of hours,'" said Andrew R. Frisch, a Florida attorney who specializes in overtime cases. "But in a lot of instances it becomes physically impossible to do that work that's expected to keep the store running" within the authorized hours.

"There are a number of reports that have come out about wage theft, which is depriving workers of overtime pay," said Vicki Shabo, director of work and family programs for the National Partnership for Women & Families. "Overtime is incredibly important, because it is both a fundamental source of income, particularly for workers in hourly or low-wage jobs," and a curb preventing employers from encroaching on personal and family time.


Rich Lord: rlord@post-gazette.com or 412-263-1542. Twitter: @richelord. First Published October 25, 2013 11:38 PM

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