Posts in Category: FLSA

Steiner v. Mitchell: Integral and Indispensable Equals Compensable

On July 20, 2020 by coff5408 With 0 Comments - Employment, FLSA, Insights

In the oldie-but-goldie decision of Steiner v. Mitchell, 350 U.S. 247 (1956), the Supreme Court held that time workers spend on activities performed before or after regular working hours is compensable under the Fair Labor Standards Act, if the activities are “integral and indispensable parts of the principal activity” of the worker’s employment. This holding, and the reasoning behind it, is an important principle of “donning and doffing,” equipment preparation, security screening, and similar cases, where workers seek compensation for time spent performing work-related activities off the clock or outside of regular work hours.

Facts

Steiner operated a car-battery manufacturing plant. The plant’s production employees worked with some toxic chemicals. These included lead and sulphuric acid. In the manufacturing process, some of the materials gave off dangerous fumes. Some were inevitably spilled or dropped, becoming a part of the dust in the air. In general, the chemicals permeated the entire plant and everything and everyone in it. Id. at 249-50.

In an effort to make the plant safer and thereby increase the efficiency of its operation, Steiner equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, Steiner furnished work clothes for the employees to wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid caused such rapid deterioration that the clothes sometimes lasted only a few days. The employees regularly changed into work clothes before the beginning of the productive work period, and showered and changed back at the end of that period. In addition, the company required the employees to take afternoon baths to minimize the amount of lead oxide absorbed into their blood. These measures were thought to protect the company and the employees. Id. at 250-52.

Steiner did not pay the employees for the time they spent in these activities, which together amounted to about 30 minutes per day. Steiner conceded that the employees’ clothes-changing and showering activities were indispensable to and integrally related to the performance of their productive work. Steiner, however, contended that these activities fell outside the concept of a “‘principal activity’ and that, being performed off the production line and before or after regular shift hours, the time employees spent doing them was not compensable time under the Fair Labor Standards Act. Id. at 250-52.

The Court’s Decision

The question for the Court was whether the time employees spent changing clothes and showering was compensable under the FLSA in light of the Portal-to-Portal Act, which provided that time spent on activities “preliminary to or postliminary to” an employee’s “principle activities” was not compensable under the FLSA.

The Court decided that this time was compensable. As the backdrop to this conclusion, the Court explained Congress passed the Portal–to–Portal Act in response to the “unexpected liabilities” created by a broad judicial interpretation (as in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) of compensable time under the FLSA. See 29 U.S.C. § 251(a). Section § 4(a)(2) of the Portal–to–Portal Act therefore exempted employers from FLSA liability for claims based on “activities which are preliminary to or postliminary to” the principal activities that an employee is employed to perform. 29 U.S.C. § 254(a)(2). 350 U.S. at 253-54.

The Court then determined that for Steiner’s battery-plant employees, changing clothes and showering were parts of their “principal,” rather than their “preliminary” or “postliminary,” activities, within the meaning of § 4(a)(2). Therefore, time employees spent in these activities was required to be counted in measuring their compensable working time under the FLSA.

First, after reviewing the Portal-to-Portal Act’s legislative history, the Court determined Congress intended that activities employees performed either before or after the regular work shift, on or off the production line, would be compensable under the FLSA if those activities are “an integral part of and indispensable to their principal activities,” and are not specifically excluded by § 4(a)(1) of the Portal-to-Portal Act. 350 U.S. at 254-56. That section, § 4(a)(1), generally excludes time spent traveling to and from the workplace. 29 U.S.C. § 254(a)(1).

Second, the Court determined the “integral and indispensable” rule was supported by other provisions of and amendments to the Portal-to-Portal Act. 350 U.S. at 254-56.

Finally, the Court concluded that with respect to Steiner’s battery plant employees, changing clothes and showering were integral and indispensable parts of the principal activity of their employment. Therefore, the time the employees spent on these activities was compensable working time under the FLSA.

Analysis

In sum, Steiner stands for the proposition that time workers spend on activities performed before or after regular working hours, on or off the production floor, is compensable under the FLSA, if the activities are integral and indispensable parts of the principal activity of the worker’s employment. The reasoning behind this holding is an important principle of FLSA cases involving donning and doffing, equipment preparation, security screening, and similar claims where workers seek compensation for time spent performing work-related activities off the clock or outside of regular work hours.

This article also appears on TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

attorney, blog, charlottesville, coffield law, court case, court cases, employees, employment, employment law, law blog, scotus, supreme court, supreme court case, supreme court cases, tim coffield, tim coffield attorney, Virginia

FLSA Professional Employee Exemption: Learned or Creative or Teaching

On May 20, 2020 by coff5408 With 0 Comments - Employment, FLSA, Insights, Legal Insight

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. However, the law contains several exceptions or “exemptions” from these requirements, most of which turn on a combination of the employees’ pay and the nature of their job duties. For example, Section 13(a)(1) of the FLSA, a.k.a. 29 U.S.C. § 213(a)(1), provides an “exemption” from both minimum wage and overtime pay for certain categories of so-called “white collar” employees — namely, employees working as bona fide executive, administrative, professional, or outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain categories of computer employees.

To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (as of January 1, 2020) and have job duties that satisfy certain requirements. Importantly, job titles do not determine whether an employee is exempt from the FLSA. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labor’s implementing regulations.

This post will focus on the exemption for professional employees. There are three general types of exempt professional employees: learned professionals, creative professionals, or teaching professionals. The Department of Labor is also an excellent resource for information about the professional employee exemption. The DOL’s implementing regulations with respect to the professional employee exemption are generally located at 29 CFR §§ 541.300-304.

Learned Professional Exemption

To qualify for the learned professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week, and meet all of the following requirements:

The employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test has three elements:
1. The employee must perform work requiring advanced knowledge;
2. The advanced knowledge must be in a field of science or learning; and
3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

29 CFR § 541.301(a)

Definition of “Primary Duty”

As used in the FLSA regulations, “primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty is based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining an employee’s primary duty include, without limitation, the relative importance of any exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 CFR § 541.700.

Work Requiring Advanced Knowledge

The regs define “work requiring advanced knowledge” as work which is “predominantly intellectual” in character, and which includes work requiring the “consistent exercise of discretion and judgment.” Professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level. 29 CFR § 541.301(b).

Field of Science or Learning

The phrase “fields of science or learning” includes the professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades. The regs make this distinction where the knowledge involved in a mechanical arts or skilled trades could be of a fairly advanced type, but is not in a field of science or learning. 29 CFR § 541.301(c).

Customarily Acquired by a Prolonged Course of Specialized Intellectual Instruction

The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the learned professional exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The regs indicate the best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree.

However, the word “customarily” means the exemption may also be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption may be available to the occasional lawyer who did not go to law school, or the occasional chemist who does not have a degree in chemistry.

On the other hand, the regs indicate the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes.

The learned professional exemption also does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. 29 CFR § 541.301(d).

Examples Applying the Learned Professional Exemption

The regulations discuss several categories of employees whose duties may or may not qualify for the learned professional exemption. For example, depending on the circumstances and levels of academic study, degrees, and certification, registered or certified medical technologists, registered nurses, dental hygienists, physician assistants, certified public accountants, executive or sous chefs, athletic trainers, and licensed funeral directors and embalmers may meet the duties requirement for the learned professional exemption.

On the other hand, licensed practical nurses, accounting clerks, bookkeepers, and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. 29 CFR § 541.301(e).

Practice of Law or Medicine

The regs further provide that an employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession.

The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine. 29 CFR § 541.304.

Creative Professional Employee Exemption

To qualify for the creative professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week, and meet all of the following requirements:

The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (as opposed to routine mental, manual, mechanical or physical work).

The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training. 29 CFR § 541.302(a).

Recognized Field of Artistic or Creative Endeavor

To qualify for the exemption as a creative professional, the employee’s work must be performed “in a recognized field of artistic or creative endeavor.” This includes such fields as music, writing, acting and the graphic arts. 29 CFR § 541.302(b).

Invention, Imagination, Originality or Talent

The requirement of “invention, imagination, originality or talent” distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. The duties of employees vary widely, and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Determination of exempt creative professional status, therefore, must be made on a case-by-case basis.

As explained in the regs, this requirement generally is met by actors, musicians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers (the majority of such persons are, of course, not employees but self-employed); and persons holding the more responsible writing positions in advertising agencies.

This requirement generally is not met by a person who is employed as a copyist, as an “animator” of motion-picture cartoons, or as a retoucher of photographs, since such work is not properly described as creative in character. 29 CFR § 541.302(c).

Journalists and Reporters

Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent (as opposed to work which depends primarily on intelligence, diligence and accuracy).

Employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product.

Thus, for example, newspaper reporters who simply rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters also do not qualify as exempt creative professionals if their work product is subject to substantial control by the employer.

However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator. 29 CFR § 541.302(d).

Teaching Professional Employee Exemption

The professional employee exemption is also available to teachers, if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. The term “educational establishment” is defined in 29 CFR § 541.204(b).

Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. 29 CFR § 541.303(b).

Faculty members who are engaged as teachers but also spend a considerable amount of their time in extracurricular activities such as coaching athletic teams or acting as moderators or advisors in such areas as drama, speech, debate or journalism are engaged in teaching. 29 CFR § 541.303(b).

The regs further provide that having an elementary or secondary teacher’s certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals. Teachers who possess a teaching certificate generally qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the State to refer to different kinds of certificates. However, private schools and public schools are not uniform in requiring a certificate for employment as an elementary or secondary school teacher, and a teacher’s certificate is not generally necessary for employment in institutions of higher education or other educational establishments. Therefore, a teacher who is not certified may be considered for exemption, provided that such individual is employed as a teacher by the employing school or school system. 29 CFR § 541.303(c)

The salary and salary basis requirements do not apply to bona fide teachers. Having a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge includes, by its very nature, exercising discretion and judgment. 29 CFR § 541.303(d).

Highly Compensated Employees

Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which, as of January 1, 2020, must include at least $684 per week paid on a salary or fee basis) are exempt from the FLSA if they “customarily and regularly” perform at least one of the duties of an exempt executive, administrative or professional employee. 29 CFR § 541.601.

“Customarily and regularly” means a frequency that must be “greater than occasional” but which “may be less than constant.” It includes work “normally and recurrently done every workweek”; it does not include isolated or one-time tasks. 29 CFR § 541.701.

This article was also published to TimCoffieldAttorney.net.

attorney, coffield law, employment law, FLSA, law, law blog, legal blog, tim coffield, tim coffield attorney, Virginia

FLSA Executive Employee Exemption: Management and Direction

On April 20, 2020 by coff5408 With 0 Comments - FLSA, Insights, Legal Insight

This post will focus on the exemption for executive employees. The Department of Labor is also an excellent resource for information about the executive employee exemption. The DOL’s implementing regulations with respect to the executive employee exemption are generally located at 29 CFR §§ 541.100-106.

Executive Employee Criteria

To qualify for the executive employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must meet all of the following requirements:

The employee must be compensated on a “salary basis” (as defined in 29 CFR § 541.602) at a rate not less than $684 per week (lower amounts apply for non-federal employees in U.S. territories);

The employee’s primary duty must be management of the enterprise, or management of a customarily recognized department or subdivision of the enterprise;

The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and

The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

29 CFR § 541.100.

These requirements contain several terms of art, which the Department of Labor has defined in its implementing regulations.

Definition of “Primary Duty”

What Is Management?

Under the FLSA regulations for executive employees, “management” generally includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures. 29 CFR § 541.102.

Department or Subdivision Verses a “Mere Collection of Employees”

The executive employee regulations clarify that the statutory phrase “a customarily recognized department or subdivision” is intended to distinguish between a “mere collection of employees” assigned from time to time to a specific job or series of jobs and a unit with permanent status and function. A customarily recognized department or subdivision must have a permanent status and a continuing function. For example, a large employer’s human resources department might have subdivisions for labor relations, pensions and other benefits, equal employment opportunity, and personnel management, each of which has a permanent status and function. 29 CFR § 541.103.

Customarily and Regularly

The regulations also define the phrase “customarily and regularly.” It means a frequency greater than occasional but less than constant. It includes work “normally and recurrently done every workweek”; it does not include isolated or one-time tasks. 29 CFR § 541.701.

Two or More Other Employees

To qualify as an exempt executive, the employee must customarily and regularly direct the work of “two or more” other employees. The regs delve into the meaning of the phrase “two or more other employees.” It means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three or more employees, but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers.

An employee who just assists the manager of a particular department and supervises two or more employees only in the actual manager’s absence does not meet this requirement for the executive exemption.

Significantly, hours worked by an employee cannot be credited more than once for different executives. Thus, a shared responsibility for the supervision of the same two employees in the same department does not satisfy this requirement. However, a full-time employee who works four hours for one supervisor and four hours for a different supervisor, for example, can be credited as a half-time employee for both supervisors. 29 CFR § 541.104.

What Is Particular Weight?

If the putative executive cannot hire or fire other employees, then to qualify for the exemption the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given “particular weight.”

The regs attempt to define “particular weight.” To determine whether a putative executive’s suggestions and recommendations about changes in employment status are given particular weight, factors to consider include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations, and the frequency with which such suggestions and recommendations are made, requested, and relied upon.

Generally, an executive’s suggestions and recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include occasional suggestions about the change in status of a co-worker. An employee’s suggestions and recommendations may still be deemed to have “particular weight” even if a higher-level manager’s recommendation has more importance and even if the employee does not have the authority to make the ultimate decision as to the employee’s change in status. 29 CFR § 541.105.

Special Exemption for Business Owners

The executive regulations establish a special exemption for business owners. Under that rule, an employee who owns at least a bona fide 20-percent equity interest in the enterprise in which she is employed, regardless of the type of business organization, and who is actively engaged in its management, is considered a bona fide exempt executive. The salary requirements for executives do not apply to those who qualify as business owners under this regulation.

Highly Compensated Employees

As noted above, the term “customarily and regularly” means a frequency that must be “greater than occasional” but which “may be less than constant.” It includes work “normally and recurrently done every workweek”; it does not include isolated or one-time tasks. 29 CFR § 541.701.

This article was also published to TimCoffieldAttorney.net.

attorney, charlottesville, FLSA, law, law blog, law insights, legal, legal blog, legal insights, tim coffield, tim coffield attorney, Virginia

FLSA Administrative Employee Exemption: Discretion and Independent Judgment

On February 20, 2020 by coff5408 With 0 Comments - FLSA, Insights, Legal Insight

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. However, the law contains several exceptions or “exemptions” from these requirements, most of which turn on a combination of the employees’ pay and the nature of employees’ job duties. For example, Section 13(a)(1) of the FLSA, a.k.a. 29 U.S.C. § 213(a)(1), provides an “exemption” from both minimum wage and overtime pay for certain categories of so-called “white collar” employees — namely, employees working as bona fide executive, administrative, professional, or outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain categories of computer employees.

This post will focus on the exemption for administrative employees. The Department of Labor is also an excellent resource for information about the administrative employee exemption. The DOL’s implementing regulations with respect to the administrative employee exemption are generally located at 29 CFR § 541.200-204.

Administrative Employee Criteria

To qualify for the administrative employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must meet all of the following requirements:

The employee must be compensated on a “salary basis” (as defined in 29 CFR § 541.602) or “fee basis” (as defined in 29 CFR § 541.605) at a rate not less than $684 per week (lower amounts apply for non-federal employees in U.S. territories);
The employee’s “primary duty” must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;
The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

29 CFR § 541.200.

Definition of “Primary Duty”

As used in these regulations, “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. Factors to consider when determining an employee’s primary duty include, without limitations, the relative importance of any exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 CFR § 541.700.

Definition of “Directly Related to Management or General Business Operations”

To meet the “directly related to management or general business operations” requirement, an employee must perform work directly related to assisting with the running or servicing of the business. This is different from, for example, working on a manufacturing production line or selling a product in a retail or service establishment. 29 CFR § 541.201(a).

As defined in the DOL regulations, work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. 29 CFR § 541.201(b)

Work Directly Related to Management or Operations of Customers

It’s worth noting that an employee may qualify for the administrative exemption if her primary duty is performing work directly related to the management or general business operations of the “employer’s customers.” 29 CFR § 541.201(a). This means that an employee who acts as a consultant to her employer’s clients or customers — as tax experts or financial consultants, for example — may qualify for the exemption. 29 CFR § 541.201(c).

Definition of “Discretion and Independent Judgment”

To qualify for the administrative exemption, an employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. As defined in the regs, the exercise of “discretion and independent judgment” involves comparing and evaluating possible courses of conduct and acting or making a decision after the various possibilities have been considered. 29 CFR § 541.202(a).

The phrase must be applied to all the facts, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. 29 CFR § 541.202(b)&(c).

In making the “discretion and independent judgment” determination, the regulations provide examples of many factors to consider, including but not limited to:

whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;
whether the employee carries out major assignments in conducting the operations of the business;
whether the employee performs work that affects business operations to a substantial degree;
whether the employee has authority to commit the employer in matters that have significant financial impact;
whether the employee has authority to waive or deviate from established policies and procedures without prior approval
whether the employee has authority to negotiate and bind the company on significant matters; and
other similar factors identified in the regulation.

29 CFR § 541.202(b).The fact that an employee’s decisions may be revised or reversed after review does not necessarily mean the employee does not exercise discretion and independent judgment. 29 CFR § 541.202(c).

The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. It also “does not include clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work.” 29 CFR § 541.202(e).

Definition of “Matters of Significance”

As used in the regulations, the term “matters of significance” refers to the level of importance or consequence of the work performed. 29 CFR § 541.202(a). An employee does not exercise discretion and independent judgment with respect to matters of significance just because the employer will experience financial losses if the employee fails to perform the job properly. 29 CFR § 541.202(f). For example, a messenger who is entrusted with carrying large sums of money does not exercise discretion and independent judgment with respect to matters of significance even though serious consequences may flow from the employee’s neglect. Id. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee’s duties may cause serious financial loss to the employer. Id.

Administrative Employee Examples

The regulations contain many examples and explanations regarding specific categories of employees who typically may or may not qualify for the administrative employee exemption. Those examples and explanations are located at 29 CFR § 541.203.

Educational Establishments

The administrative exemption may also be available to employees who meet the salary basis or fee basis test, or on a salary basis which is “at least equal to the entrance salary for teachers in the same educational establishment,” and whose primary duty is “performing administrative functions directly related to academic instruction or training in an educational establishment.” 29 CFR § 541.204(a).

The term “educational establishment” means an elementary or secondary school system, an institution of higher education or other educational institution. 29 CFR § 541.204(c).

Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. 29 CFR § 541.204(c). Employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system, and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities. 29 CFR § 541.204(c)(1).

These categories of academic employees may qualify for the administrative exemption because having a primary duty of performing administrative functions directly related to academic instruction or training in an educational establishment necessarily involves exercising discretion and independent judgment with respect to matters of significance.

Highly Compensated Employees

The term “customarily and regularly” means a frequency that must be “greater than occasional” but which “may be less than constant.” 29 CFR § 541.701. Tasks or work performed “customarily and regularly” includes work normally and recurrently performed every workweek; it does not include isolated or one-time tasks. Id.

This blog was also published to TimCoffieldAttorney.net.

attorney, charlottesville, coffield law, employees, employment, employment law, FLSA, law, law blog, law insights, lawyer, legal, legal blog, legal insights, tim coffield, tim coffield attorney, Virginia

Kasten v. Saint-Gobain: Scope of FLSA Protected Activity

On November 20, 2019 by coff5408 With 0 Comments - FLSA, Legal Insight, Supreme Court Cases

In Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act protects employees who make oral (as well as written) complaints that their employer violated the FLSA.

Facts

Kasten worked for Saint-Gobain Performance Plastics. He complained orally to his superiors that the company located its timeclocks between the area where Kasten and his co-workers put on (and removed) their work-related protective gear and the area where they carried out their job duties. This location, Kasten complained, prevented workers from receiving credit for the time they spent putting on and taking off their work clothes — contrary to the requirements of the FLSA. Kasten complained only orally and did not make a written complaint. Saint-Gobain fired him. Id. at 5-6.

Kasten then sued his former employer, alleging that Saint-Gobain violated the FLSA’s anti-retaliation provision by terminating him for complaining orally about the legality of the location of the timeclocks. The trial court granted summary judgment for the employer, holding that the FLSA’s anti-retaliation provision covered only written complaints and did not cover oral complaints. The Seventh Circuit affirmed and Kasten appeals.

The Court’s Decision

The FLSA’s anti-retaliation provision makes it unlawful for employers “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3) (emphasis added).

The Court held that the scope of the statutory term “filed any complaint” includes oral, as well as written, complaints — and therefore the FLSA prohibits retaliation against employees who complain orally about violations of the wage and hour law.

As an initial matter, the Court cited its decision in Dolan v. Postal Service, 546 U.S. 481, 486 (2013) for the principle that proper interpretation “depends upon reading the whole statutory text, considering the [statute’s] purpose and context …, and consulting any precedents or authorities that inform the analysis.” The Court further explained that the text at issue — “filed any complaint” — taken alone, could not provide a conclusive answer as to whether it included oral complaints. Some dictionary definitions of “filed” contemplated a writing; others permitted using “file” in conjunction with oral material.

The Court noted that in addition to dictionary definitions, state statutes and federal regulations sometimes contemplate oral filings, and an analysis of contemporaneous judicial usage shows that when the FLSA was passed in 1938 oral filings were a known phenomenon. And even if “filed,” taken in isolation, might suggest a narrow interpretation limited to writings, the remainder of the phrase — “any complaint” — suggested a broad interpretation that would include an oral complaint. Thus, the Court concluded that the phrase “filed any complaint,” taken by itself, was not clear. Id. at 5-11.

Nor could the FLSA’s other references to “filed” resolve the question of whether oral complaints were included. Some parts of the FLSA involve filed material that is almost always written; others specifically require a writing, and others leave the oral/written question unresolved. Because the text at issue, taken alone, might, or might not, encompass oral complaints, the Court had to look to other methods of interpretation. Id. at 5-11.

The Court observed that several “functional considerations” indicated that Congress intended the anti-retaliation provision to cover both oral and written complaints. Id. at 11. First, looking to the FLSA’s purposes, the Court noted that a narrow interpretation excluding oral complaints would undermine the law’s basic objective: to prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,” 29 U.S.C. § 202(a). The Court had previously observed that the FLSA relies for enforcement of its substantive standards on “information and complaints received from employees,” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960), and its anti-retaliation provision makes the enforcement scheme effective by preventing “fear of economic retaliation” from inducing workers “quietly to accept substandard conditions[.]” Ibid. With that purpose in mind, the Court noted that limiting the provision’s scope to written complaints could have the undesirable result of preventing Government agencies from using hotlines, interviews, and other oral methods to receive complaints. 563 U.S. at 11-14.

Second, the Court determined that in light of the delegation of enforcement powers to federal agencies, the agencies’ views about the meaning of the phrase “filed any complaint” should be given weight. The Secretary of Labor, charged with enforcing the FLSA, has long interpreted “filed any complaint” as covering both oral and written complaints. Similarly, the Equal Employment Opportunity Commission, charged with enforcing other employment laws, has a similar view that oral complaints are protected complaints. The Court held that these views were reasonable and consistent with the FLSA. And the length of time the Secretary of Labor held its position suggested it was the result of careful consideration, not “post hoc rationalizatio[n].” Id. at 14-16 (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50 (1983)).

Finally, Saint-Gobain made an alternative argument that the anti-retaliation provision only covered official complaints to government agencies or in court, and therefore did not protect internal complaints (written or oral) to employers. The Court declined to address this argument, however, because it was not properly raised in the certiorari briefs and did not need to be addressed to resolve the oral/written complaint issue. Id. at 17.

Scalia dissented on that point, arguing that the language of anti-retaliation provision, in light of the FLSA’s other references to “filing,” only protected official grievances filed with a court or an agency, not oral complaints — or even formal, written complaints — from an employee to an employer. Id. at 18-26.

Analysis

Kasten clarified that an oral complaint about an employer’s FLSA violation is protected activity under the FLSA. The law therefore prohibits employers from retaliating against employees who complaint about violations of the federal wage and hour law, regardless of whether the employee complains orally or in writing.

This blog was also posted to TimCoffieldAttorney.com.

attorney, blog, charlottesville, coffield law, court case, court cases, employees, employment, employment law, legal insights, supreme court, supreme court case, supreme court cases, tim coffield, tim coffield attorney, Virginia