IS JESSE PINKMAN ENTITLED TO OVERTIME PAY?

THIS POST CONTAINS SOME SPOILERS

Jesse Pinkman has a lot of things on his mind, including an open DEA investigation and the violent death of everyone he’s ever loved.  Unpaid wages are probably not high on his list of priorities. Still, he may want to think about talking to an employment lawyer when the dust settles, as Jesse may be owed a lot of money.  Leaving aside for a moment the illegality of his profession, Jesse has an argument that he is entitled to overtime for at least part of the work he did over the course of the show.

There’s No “Meth Superlab” Exemption to the FLSA

In the first few seasons, Jesse and Walter set up shop in their own Winnebago. They set their own hours, determined the places they worked, and provided their own supplies. As such, they were clearly self-employed, or perhaps independent contractors for Tuco Salamanca and the cartel.  Either way, they would not be entitled to overtime.  Likewise, at the end of the show, Pinkman was more or less enslaved by the Nazis. Overtime at that stage was the least of his concerns.

But in Season Three, Walter and Jesse were employed by Gus Fring, the fried chicken magnate and cartel overlord, in his underground meth Superlab. The terms of their employment were determined by Fring, they were paid a fixed salary (of $15 million a year between them), and, especially as Fring became suspicious of Walter, they worked under close supervision. As such, they were most likely employees for the purposes of federal law.

Under the Fair Labor Standards Act, all employees are entitled to overtime compensation for any hours worked over forty in a given workweek, unless they fall within one of several defined exemptions. For instance, “learned professionals”–employees in a position that requires an advanced degree, such as doctors and lawyers–are not entitled to overtime compensation. Computer specialists, executive employees, outside salespeople, small farmer workers, and casual domestic workers are all likewise exempt from overtime rules. Walter White was Jesse’s supervisor and manager, and would therefore fall under the executive exemption. But Jesse does not neatly fit into any of these categories.

By the middle of season four, Gus and Walter had agreed to a long term, $15 million a year deal. Assuming Jesse was entitled to half, he was making a salary of $7.5 million per year. The most likely exemption that Jesse might fall under would therefore be for “highly compensated” workers. The federal regulations contain a special rule for  workers who make $100,000 or more per year. To qualify for this exemption, however, Jesse would have to perform “office or non-manual work” as his primary duty, and cooking meth arguably falls outside the scope of that rule.

Of course, bringing a federal lawsuit against Gus Fring’s estate or Los Pollos Hermanos for unpaid overtime compensation would lead to some extremely uncomfortable questions about tax evasion and money laundering (not to mention building a methamphetamine  empire). Most fans probably hope that after Jesse’s final escape he is free and happy in Alaska. But if he ends up getting what’s coming to him, he might as well try to make sure that includes unpaid wages.

I wonder if Saul Goodman takes employment cases?

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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