Senior counsel David J. Fishman and associate Janet S. Soultanian successfully argued against an outside salesperson claiming unpaid wages pursuant to a written contract, waiting time penalties, liquidated and interest amounting to over $4,000 in a claim filed with the California Labor Commissioner against her former employer, a pharmacy. She recalled she worked 8 hours a day for 2 weeks based on “her memory.” The pharmacy argued that, even though there were emails to support that the salesperson was performing some work, she had no records to support her 52 hours worked, nor did she provide any of her work product to her employer. The Labor Commissioner held that the plaintiff, as the party asserting the affirmative, has the burden of proof by a preponderance of evidence meaning, evidence that, when weighed with that opposed to it, has more convincing force and greater probability of truth. The Labor Commissioner ruled that the plaintiff takes nothing because the evidence was insufficient to support a finding that the plaintiff is entitled to recover 52 hours of regular wages as he found the plaintiff’s testimony was unreliable and not credible, due to inconsistencies and hesitancies. The plaintiff has the right to appeal this ruling with the state trial court.
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