Merrill Employees Seek Overtime Pay for Vetting Brokers’ E-Mails

By Mason Braswell

Merrill Lynch is violating federal and state labor laws by failing to pay overtime to over 50 compliance employees who review emails for the firm’s retail brokers, according to a class-action claim filed Tuesday in the U.S. District Court of New Jersey.

Jennifer Porter, an e-mail reviewer for 17 years at Merrill’s Central Business Review Unit in Pennington, NJ, said the firm has knowingly classified her and colleagues as exempt from receiving overtime pay since Bank of America bought the broker-dealer in 2009.

E-mail reviewers are entitled to 1.5 times their hourly pay rate because they do not manage other employees or direct any business divisions, and do not qualify for “administrative” or “supervisory” exemptions, according to Mitchell Schley, a lawyer in East Brunswick, New Jersey, representing the plaintiffs.

“It’s a grueling job, and they work a lot of hours because they’re expected to have all e-mails checked by the end of the day,” Schley said.

The action is the latest in a long history of cases in which securities industry employees have battled firms’ arguments that they do not have to pay overtime to “exempt” executive, administrative or so-called professional workers who hit minimum pay levels.

Smith Barney reached a $98 million settlement with brokers in 2006 after arguing that salespeople are exempt from the Fair Labor Standards Act, and current and former Merrill client associates collected $89,000 from Merrill and Bank of America in a May settlement after suing them in August 2016 for more than $5 million.

The latest suit alleges that Merrill had classified e-mail reviewers as non-exempt employees entitled to overtime pay until its acquisition by Bank of America. The change was unlawful and made “pursuant to a policy, plan, or practice of minimizing labor costs and denying employees compensation,” the complaint said.

Porter was the second most tenured e-mail reviewer at Merrill when she left the firm in April, it said. She is seeking an unspecified amount of wages for the hours she and her colleagues worked beyond the 40-hour workweek, in addition to interest, injunctive relief and attorney’s’ fees and costs, according to the complaint.

A spokesman for Merrill Lynch declined to comment.

E-mail reviewers’ standard work day ran from 8:30 am to 5:30 pm, but they routinely work later into the day or remotely from home to meet the requirements of their jobs, the lawsuit alleges.

“Mondays were particularly demanding because FAs routinely sent emails to customers on Friday and over the weekend,” it said. “Management expected all of those emails to be reviewed by the end of Monday.”

The lawsuit gives some insight into the nature of reviewers’ jobs.

In addition to reviewing brokers’ electronic messages to customers and prospects that have been flagged by Merrill’s automated Autonomy review system and weeding out false positives, e-mail reviewers parse unflagged communications at random for potential violations, according to the lawsuit.

They are trained to give attention to any e-mail containing customer account information such as social security numbers, personal data such as birth dates, customer complaints, “guarantees” by brokers of investment returns, vulgar language, ethnic slurs and pornographic material and material marked as “For Internal Use Only,” the lawsuit said.