In the wake of clarifications, a lot of unlikely targets popped up as defendants in wage-and-hour suits, the Advisen researchers said–identifying banks, property and casualty insurers, computer firms, and pharmaceutical companies among them.

"These industries are not necessarily getting hit with a lot of suits, but the fact that they're getting hit at all is a real eye-opener to a lot of people," according to Mr. Bradford.

In the aggregate, across all industries, Advisen and other researchers have indeed uncovered a lot of suit filings.

o According to New York-based NERA Economic Consulting, the number of FSLA filings in U.S. district courts soared from 1,876 at the beginning of the decade in 2000 to more than 5,298 in 2008, the latest year studied in a November 2009 analysis.

o The DOL's Wage-and-Hour Division recovered some $1.5 billion in back wages between 2001 and 2008, with an annual average of $186 million for 2005-2008, Mr. Molka reported.

o NERA, which analyzed 180 wage-and-hour suits filed in state and federal courts between 2006 and 2008, reported that 64 percent involved allegations of overtime pay, off-the-clock violations and employee misclassification. (See the accompanying sidebar, "The Basics," for explanations of these and other common violations.)

o Walmart has been the target of 80 wage-and-hour class action civil suits, agreeing to settlements in the hundreds of millions of dollars, Advisen reported.

o Giving statistics that indicate a potential for future actions, Advisen reported that the DOL, which enforces the FLSA, estimates some 70 percent of employers are not in compliance, and 86 percent of the U.S. workforce is not exempt from FLSA overtime provisions.

Mr. Molka said that when President George W. Bush's administration sought to clarify which positions are exempt for FLSA requirements in 2004, thinking it would make it easier for companies to comply, "in fact all it did was take a muddy field and clear it up for the plaintiffs' attorneys."

Damien Magnuson, assistant vice president for Executive Perils in Los Angeles, also pointed to a 1999 case in California–Ramirez vs. Yosemite Water Co.–that started fueling wage-and-hour claims activity in the state.

In that case, the California Supreme Court distinguished California law (which creates quantitative tests to determine exempt employee status) from federal laws (which hinge on qualitative language relating to an employee's "primary duties."

Thomas Hams, managing director and EPLI national practice leader for Aon Risk Services in Chicago, said that in California, employees that spend more than 50 percent of their time doing non-managerial functions are considered non-exempt. "So if you're the manager of a store, but you spend more than 50 percent of your time stocking shelves and doing daily functions similar to a regular employee, then you can't be an exempt employee," he said.

Retailers confused by manager titles are not the only hot spots for litigation, experts warned. "There have been instances where the insurance industry has been a focus–particularly claims handlers–because of unique hours and having to be on site" where there is damage, Mr. Hams said.

(What about insurance brokers? See a related article in our sister publication, American Agent & Broker, at http://www.agentandbroker.com/Issues/2010/May-2010/Pages/Are-you-paying-your-employees-what-you-owe-them.aspx.)

Mr. Molka said claims adjuster cases and cases involving pharmaceutical company sales representatives also turn on questions about the amount of independent judgment they use. "What's happened in a lot of industries [is that] workers are being [increasingly] trained by strict guidelines and following standards made by the company," he said.

A claims adjuster, for example, has a carrier-supplied checklist to go through, limiting any independent judgments, while pharmaceutical reps are increasingly just following company-supplied scripts, he said.

In addition, there are questions about whether the drug company reps, who seek to encourage doctors to prescribe more, are really sales people falling under outside sales' exemptions, Mr. Hams of Aon said.

Mr. Molka noted that while federal laws also have computer exemptions, Silicon Valley employers have been caught up in federal court cases and cases under the higher exempt-employee thresholds of California law.

"You can't just be a low-level computer person. You have to be someone that is actually making some independent decisions," he said. "So a lot of these programmers putting in all-nighters are being swooped up in this."

Mr. Hams said drug makers also face "donning and doffing" claims, which allege that on-site employees did not get paid for time spent putting on and taking off complicated uniforms.

Seth Brickman, a senior underwriter at Windsor, Conn.-based Business Risk Partners, said this is an issue that other businesses encounter, such as gas stations.

If a station attendant is required to put on a uniform every day in a locker room on premises, twice a day, that's 10 minutes a day, or 50 minutes a week. "These things pile up," he noted, explaining that an employer may not realize pay is required for those five minutes. "All of a sudden, it's compounding," he said.

Meghan Bell, an underwriter for Rockwood Programs in Wilmington, Del., who underwrites employment practices liability insurance on behalf of HCC's AVEMCO, gave a perspective of someone who sees a lot of restaurant, contractor and small-business accounts.

When one employee says he or she worked through lunch and didn't get paid, this can fuel "me-too" claims that mushroom into class actions, she said.

Other cases that resulted in policy limits' losses of $100,000 involve tip-pooling cases for restaurants, she said.

In general, she said some wage violations occur as small businesses grow. When people go into business, they might start out following all the rules, but as they add people, they fail to keep up or to check back to see what might have changed, she said.

Mr. Molka predicted that the limited number of EPL insurance coverage options for wage-and-hour claims may grow as underwriters have more history to gauge the application of the modern-day version of FLSA and other laws.

"The higher level of enforcement of these laws is really pretty recent," he said. "It used to be more cut and dried in the past. You had a blue-collar hourly worker, and it was pretty clear that [an employer] paid so much an hour and they had a time to punch in and out."

"That isn't like the professional who is going home and puts on the PC and then works at night, too," he said. With more flexible work schedules, it's harder to judge when wage-law violations are occurring, he said.