• Based on its expertise in employment law, Cummins & White, LLP, successfully represented the owner of a construction company when former supervisors sued for $287,000 over a variety of employment issues, including unpaid overtime.
  • Cummins & White successfully defended the employees’ designation as exempt by creating and executing a seven-point litigation and trial strategy designed to demonstrate that the Plaintiffs were properly classified as exempt.
  • A key factor was the preventive counseling Cummins & White provided to the firm, advising the owner about employment-related issues and helping to draft appropriate job descriptions, one of which was cited as critical evidence in the case.

Case Study


Former employees of Wireless Infrastructure Services (WIS), a builder of cell phone towers based in Southern California, sued the company, claiming they were entitled to overtime pay, meal and rest break pay, as well as other damages because they performed manual labor (non-exempt duties) while being treated as exempt supervisors.

Legal Strategy

Jim Wakefield of Cummins & White, LLP, created and executed a litigation plan designed to demonstrate that the Plaintiffs were properly classified as exempt and focused on the following facts to prove their defense:

  • Established that the Plaintiffs were paid at least two times the minimum wage.
  • Established through e-mail documentation that the Plaintiffs’ job functions were managerial in nature.
  • Established through the testimony of other WIS field supervisors that the field supervisor position was managerial.
  • Established through detailed WIS job descriptions (written prior to this action by Cummins & White attorneys) that a field supervisor’s job duties were management functions and were clearly relayed to the Plaintiffs.
  • Established that the Plaintiffs regularly directed two or more employees (California Labor Code 29 C.F.R. § 541.04).
  • Established through e-mail correspondence that WIS did give “particular weight” to the Plaintiffs’ opinions and recommendations (29 C.F.R. § 541.105).
  • Established that the Plaintiffs’ performance of concurrent duties (manual labor at the same time as supervisory work on the job site) did not excuse them from being exempt employees (29 C.F.R. § 541.06).

At trial, by clearly substantiating the Plaintiffs’ ongoing role as managers on job sites, Jim Wakefield was then able to argue that, even if Plaintiffs also performed manual labor, their concurrent performance of exempt and nonexempt work did not disqualify them from exempt status, and that as supervisors they were still responsible for the success of the construction projects they oversaw.

Mr. Wakefield also successfully argued that the Plaintiffs could not remove themselves from the exempt classification by choosing to do manual labor or non-managerial tasks. The attorneys, relying on solid legal precedent, argued that the company specified what duties the Plaintiffs were to perform and expected them to perform those duties. The fact that the Plaintiffs failed to perform as expected did not make them non-exempt.


The judge found in favor of Wireless Infrastructure Services, holding that the Plaintiffs had been properly designated as exempt supervisors according to the California Labor Code, and no monies were awarded.

According to Mr. Wakefield, this result confirms the value of preventive business counseling combined with developing an aggressive and thorough litigation plan with anticipation for trial. “By proactively addressing employment issues with our client early on, we laid the groundwork for a successful defense,” he said. “Most employers are afraid to defend these cases and opt to settle instead. We were able to establish proof for every test of exemption, clearly solidifying our case.”

Travis Donahue, owner of Wireless Infrastructure Services, also was thrilled with the verdict. “Being a cautious business owner, I seek legal advice on all of my business documents and procedures, and I am fortunate that I engaged Cummins & White early on,” Donahue said. “I also was fortunate that the firm has such a skilled litigation team who, with solid evidence and case law, negated every issue the Plaintiffs presented.”