6 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com and training employees, setting and adjusting pay rates and work hours, directing work, keeping production records for subordinates, evaluating employees’ efficiency and productivity, handling employee complaints, disciplining employees, planning work, determining techniques to be used, distributing work, deciding on types of materials, supplies, machinery and tools to be used or merchandise to be bought, stocked, and sold, controlling the flow and distribution of merchandise and supplies, and providing for employee safety.22 Seyfarth Shaw has successfully defended many cases where liability turned on whether a particular job duty qualifies as exempt or non-exempt. Those cases often have turned on careful analysis of similar duties under the FLSA regulations that are expressly incorporated into the Wage Orders. For example, we defended a case for a large HMO that turned on whether working pharmacy managers were misclassified as exempt executives. A main manager duty was to check the work of pharmacy employees for medication errors in filling prescriptions—a duty also performed by licensed pharmacists who were not managers. We have obtained summary judgment by relying on numerous cases holding that: (1) a manager checking another employee’s work for compliance with a standard qualifies as exempt “supervision”;23 (2) it does not alter the analysis that non-managers also perform the same task.24 Another federal regulation expressly incorporated into the IWC Wage Orders is (former) 29 CFR section 541.108, which defines exempt work to include all work that is “directly and closely related to exempt work.” The FLSA regulation explains that this concept allows seemingly non-exempt duties to be treated as exempt duties: [It] brings within the category of exempt work not only the actual management of the department and the supervision of the employees therein, but also activities which are closely associated with the performance of the duties involved in such managerial and supervisory functions or responsibilities. The supervision of employees and the management of a department include a great many directly and closely related tasks which are different from the work performed by subordinates and are Enters., 182 Cal. App. 3d 546, 550 (1986) (“It has been held that when California’s laws are patterned on federal statutes, federal cases construing those federal statutes may be looked to for persuasive guidance.”). 22 29 C.F.R. § 541.102. Although the FLSA regulations were updated in 2004, the definition of exempt “executive” work has remained substantially the same for decades. 23 See Sturm v. Toc Retail, Inc., 864 F. Supp. 1346, 1351 (M.D. Ga. 1994) (convenience store manager checking for employees’ compliance with “Majik Market dos and don’ts” was exempt supervision even though often performed by senior clerks as well as the manager); see also Baldwin, 266 F.3d at 1117 (trailer park managers’ duty of ensuring that park employees followed company policy was supervisory and, therefore, exempt work); Beauchamp v. Flex-N-Gate LLC, 357 F. Supp. 2d 1010, 1015-17 (E.D. Mich. 2005) (supervisory duty for a plant manager to “ensur[e] that employees in their charge actually meet [company] standards in their daily work”); Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 499 (6th Cir. 2007) (manager of Speedway gas station/convenience store had primary duty of management, although she spent 60% of her time on non-managerial tasks performed by nonexempt employees); Jones v. Va. Oil Co., 69 Fed. App’x 633, 637 (4th Cir. 2003) (holding that Dairy Queen manager had primary duty of management, where manager spent approximately 75–80% of her time carrying out basic line-worker tasks because “while [she] was doing line-worker tasks, she also engaged in the supervision of employees, handled customer complaints, dealt with vendors, and completed daily paperwork”). 24 Sturm, 864 F. Supp. 1346; see also Baldwin, 266 F.3d at 1115 (“[Having non-exempt employees perform] managerial tasks does not render the tasks non-exempt.”); Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 239 (C.D. Cal. 2006), aff’d, 464 Fed. App’x 636 (2011) (“[T]he (assistant managers) seem to consider any task performed by an hourly employee to be a non-exempt task. That is not the law.”).
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