Five Below faces claim asserting failure to pay overtime

By Jon Campisi | Nov 15, 2011

A Montgomery County, Pa. man who works for the retail chain Five Below has filed a federal lawsuit against the company, alleging he was not compensated for overtime during his time as a salaried employee.

Dresher, Pa. attorneys Peter Winebrake, R. Andrew Santillo and Mark J. Gottesfeld, of The Winebrake Law Firm, filed the civil action Nov. 14 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Kevin Kilpatrick of Glenside.

The defendant is Philadelphia-headquartered Five Below Inc.

According to the complaint, Kilpatrick, who is employed as a help desk support analyst, was not paid for overtime hours worked from a period between July 2010 and October 2011.

The lawsuit states that despite claims to the contrary, the general “help desk” job title is not covered by the professional exemption overtime pay provisions of the Federal Labor Standards Act and the Pennsylvania Minimum Wage Act.

While Kilpatrick has, since October of this year, been paid on an hourly basis and classified as non-exempt from the overtime pay provisions of the FLSA and PMWA, he contends in his suit that he was not paid the proper overtime amount during that prior employment period, when he was classified as a salaried employee, and typically worked more than 40 hours per week, the suit states.

The complaint states that much of the overtime work arose during workweeks in which Kilpatrick was designated as “on call,” and therefore required to perform IT troubleshooting tasks outside of his normally scheduled work hours.

“During the relevant time period, plaintiff did not receive any compensation, including overtime premium compensation, for hours worked over 40 during the workweek,” the lawsuit states. “In failing to compensate Plaintiff for hours worked over 40 in a workweek, Defendant acted willfully and with reckless disregard of clearly applicable FLSA and PMWA provisions.”

Kilpatrick seeks judgment against the defendant in the form of unpaid overtime wages, liquidated damages, prejudgment interest, litigation costs, attorney’s fees and other court relief.

Kilpatrick is demanding a jury trial.

The federal case number is 2:11-cv-07061-TJS.

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