American Merchandising Specialists’ Field Marketing Reps Are Misclassified, Owed Unpaid Overtime, Lawsuit Alleges

New to ClassAction.org? Read our Newswire Disclaimer

A proposed class and collective action claims American Merchandising Specialists, Inc. (AMS Retail) has misclassified field marketing representatives and those in similar roles as independent contractors and failed to pay the workers proper overtime wages.

The 19-page lawsuit alleges the nature of the workers’ jobs more closely resembles that of bona fide employees entitled to certain protections under federal and state law, including the payment of time-and-a-half overtime wages for weekly hours worked in excess of 40. According to the suit, the defendant, a retail support company, has willfully disregarded its obligations to pay overtime under the Fair Labor Standards Act (FLSA) and New Jersey Wage and Hour law (NJWHL) in order to save on labor costs.

“Defendant and its senior management had no reasonable basis to believe that Plaintiff and Class Members were exempt under the FLSA or the NJWHL,” the complaint alleges. “Rather, Defendant knew or acted with reckless disregard for clearly applicable FLSA and NJWHL provisions in misclassifying Plaintiff and the FLSA Collective as exempt and failing to pay them overtime.”

AMS Retail is a third-party labor agency that provides retail support to manufacturers such as Samsung, Bosch and Bissell, the suit says. Per the case, the defendant employs field marketing representatives, field sales representatives, product advisors and workers in similar positions to perform brand advocacy and merchandising services at its clients’ retail stores. More specifically, the suit says the workers are primarily responsible for sharing product knowledge with retail personnel, answering customers’ questions, conducting product demonstrations, cleaning products, performing inventory checks, auditing and stocking products, opening and sorting point-of-purchase displays, building product displays and updating pricing and signage.

The plaintiff says she worked as a field marketing rep from October 2018 to June 2020 and from August 2020 to January 2021 for AMS Retail client Samsung Home Appliances at retailers such as Home Depot, Lowes and Best Buy. Per the case, the plaintiff and similarly situated employees received job assignments through Natural Insights, a retail task management platform utilized by AMS Retail. Field marketing reps, according to the suit, were directed by the defendant as to which retailers to visit each day and, upon arrival to each store, were required to perform a series of standardized tasks listed on Natural Insights.

The plaintiff alleges she and other field marketing reps received via email specific directives, including where in the store to set up their tables, how to engage with retail personnel and customers, and which client models to promote. The case stresses that the workers were not responsible for selling clients’ products but merely to engage with customers and answer their questions.

Field marketing reps, the lawsuit says, are not required to have any advanced knowledge or experience, including a college degree or background in sales, in order to complete their job duties. Moreover, the workers do not exercise discretion and independent judgment as to matters of significance, and are instead directed by the defendant, the case alleges. These day-to-day job characteristics, according to the suit, indicate that the field marketing reps should be classified as employees rather than independent contractors.

The plaintiff says she and other workers were “required and expected” to put in more than 40 hours of work per week and typically worked at least 45 to 50 hours without being paid time-and-a-half overtime wages.

Get class action lawsuit news sent to your inbox – sign up for ClassAction.org’s newsletter here.