We all know that to be exempt means that the employee is not eligible to be paid overtime. This is not determined by job title. There are several factors that go into deciding if an employee qualifies to be exempt. First they have to be paid a salary, but that is not sufficient, a mistake many companies make. Secondly is the importance of the primary duty they are performing. A recent case demonstrated how important this is.
In case of the executive (managerial) exemption “The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.” Further, “’Primary duty’ means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.”
According to attorney Eunice Majam-Simpson of Nossaman LLP this was the deciding factor in a case against Safeway grocery stores. In her article Did You Know…“Primary Purpose” Is The Appropriate Test To Determine Exemption Status Of An Employee, Majam-Simpson describes the case of Heyen v. Safeway, Inc., in which “Heyen claimed that Safeway should have classified her as “non-exempt” because she regularly spent a majority of her time performing checking and bagging duties.” Safeway claimed that Heyen was performing managerial duties at the same time and was thus properly classified as exempt.
The court did not agree with Safeway. They said “…that when a party claims an employee is engaged in concurrent performance of exempt and non-exempt work, the jury must consider the time to either be exempt or non-exempt, depending on the “primary purpose” for which the employee undertook the task.” Majam-Simpson explains there is no hybrid category. If Heyen were truly performing managerial duties it would have been exempt work. However, she was performing clerk duties in order to avoid going over the budget of hours allotted to the store, thus she was primarily performing non-exempt work and was thus due overtime. She was not fulfilling the primary duty aspects of the job of being a manager.
Burden of proof with the employer
Majam-Simpson concludes that this case shows “…that the burden of proof of showing an employee’s exempt status rests on the employer. To meet its burden, Heyen requires employers to show that the primary purpose of tasks performed by their store managers relate to employee supervision and/or management of the store.”
I have written a number of times on the importance of proper classification. Title means nothing. It is the job description that holds sway. You don’t have to hold to it 100% of the time but the preponderance of work needs to be in that job description. Otherwise you can be racking up non-exempt overtime that could actually permanently alter the exemption status of the position. So be careful.
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