Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 7 commonly performed by supervisors because they are helpful in supervising the employees or contribute to the smooth functioning of the department for which they are responsible. Frequently such exempt work is of a kind which in establishments that are organized differently or which are larger and have greater specialization of function, may be performed by a non-exempt employee hired especially for that purpose.25 In other words, non-discretionary work can be “directly and closely related“ to exempt work—and hence itself considered exempt work—even if it is not truly essential to the exempt work,26 and even if it is work that need not be performed by managers.27 As long as the work is related to a management function, it is considered to be exempt. These regulations support arguments that activities appearing to be non-exempt in the abstract may be considered exempt if they are undertaken to effectuate exempt functions of a manager’s job. Another important issue in these cases that Ramirez does not resolve is how one applies the purely quantitative approach to time spent simultaneously performing exempt and non-exempt tasks: Is this time exempt, nonexempt, or some combination of the two? Under federal law, a manager might concurrently be engaged in handson, non-exempt type work and be monitoring the operation of a business for managerial purposes (e.g., pouring coffee at a restaurant while directing work).28 Employers received a different answer under California law in Heyen v. Safeway, Inc.,29 in which the Court of Appeal considered whether the concurrent performance of both exempt and non-exempt work could be counted toward time spent performing exempt work. Heyen noted that the federal regulations look to the supervisor's reason or purpose for undertaking the task. If a task is performed because it is “helpful in supervising the employees or contribute[s] to the smooth functioning of the department for which [the supervisors] are responsible” (§ 541.108(a), (c)), the work is exempt; if not, it is nonexempt. Heyen found that the federal regulations incorporated into the Wage Orders do not support the “multi-tasking” or “hybrid” activity standard urged by the employer. A task is either exempt or nonexempt, and the “trier of fact must categorize tasks as either “exempt” or “nonexempt” based on the purpose for which [the employee] undertook them.” For example, “a department manager or buyer in a retail or service establishment who goes about the sales floor observing the work of sales personnel under his supervision to determine the effectiveness of their sales 25 Former 29 C.F.R. § 541.108(a). 26 Harrison v. Preston Trucking Co., 201 F. Supp. 654, 658-59 (D. Md. 1962) (“[T]he test is not whether the work is essential to the proper performance of the more important work, but whether it is related. Thus, notemaking, by a consultant when standing alone or separated from his primary duties, would be routine and, hence, not directly and closely related within the meaning of the regulations, but at the same time such work is necessary to the proper performance of his primary duties and thus is considered to be ‘directly and closely related’ when performed by the consultant.”). 27 Adams v. United States, 36 Fed. Cl. 91, 98 (1996) (“A supervisor does not become non-exempt merely by doing tasks which are incidental to his main work, even if non-supervisory workers might perform them as well. The question is whether a supervisor engages in those tasks because he is a supervisor.”). 28 See Donovan v. Burger King Corp., 672 F.2d 221, 225-26 (1st Cir. 1982). The 2004 FLSA regulations added a new regulation entitled “concurrent duties,” 29 C.F.R. § 541.106, explaining that a manager is engaged in exempt managerial work when he is engaged simultaneously in exempt and non-exempt work. But this regulation has not been incorporated into the IWC regulations. 29 216 Cal. App. 4th 795 (2013).
RkJQdWJsaXNoZXIy OTkwMTQ4