I work for an employer and we are being sued by a non-exempt employee for overtime. I will give you quick background so you may answer my two questions.

100% commission inside sales position. Employee received both w-2 and 1099 income to a marketing company (1099 was for commissions). W-2 only income employee did not make 1 1/2 times min wage but W-2 + 1099 = 10 times min wage. Can 1099 income for commissions made payable to a marketing company which is a sole proprietership (employee is sole owner) be part of the funds that push the employee over the 1 1/2 times barrier for overtime to be exempt? (edit don't ask why he was paid 1099 to a marketing company as I have no idea as it was a decision made from above)

Lastly, this went to a labor hearing where the commissioner ruled in my favor. The employee appealed the decision and we are now at a trial de Novo. At a trial de Novo is the burden of proof still on the plaintiff? If so I asked for daily time records so I could refute them and perjure him under oath. At the hearing the employee mentioned he had them on his computer and only worked in the office. At a deposition he changed his story on where he worked the hours and says he no longer has the time records and he no longer has the computer.

Can I use the hearing transcript against him? (showing a change of story)

How can I refute the hours worked when he will not produce the daily timesheets he once said he had? All I have is the DLSE-55 records which are based weekly not daily. What should I do in this situation? I can perjure him in other areas and shoot his credibility to hell and make him seen unbelievable, is this my best defense at this point? Thank you for any help.

I am not an attorney, and cannot respond to any attorney-type questions.

I am very skeptical that the 1099 was correctly issued. It is very likely that these should have been W-2 wages. If we have a Non-Exempt employee, then we normally have the commissions affecting Regular Rate of Pay, and OT.

The employer was legally required to maintain the time accounting records. It seems unusual that the employer needs to get copies of their records from an employee.

There is a possible exemption from OT for inside sales positions. I am going to include a webpointer. You should review this page to see if it affects you.

http://www.dol.gov/esa/regs/compliance/whd/whdfs20.htm

No attorney can answer these types of questions in a forum such as this. You should consult a labor attorney in your local area who can review ALL the facts of your case and advise you how best to proceed. If you prevail at the trial, the employee will have to pay your attorney fees, so I can not imagine a reason why you would not already have one. My office can not represent you, so this is not me trying to get business. It is just good sense not to discuss your legal strategy on an internet forum.