8 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com techniques, checking on the quality of customer service being given, or observing customer preferences and reactions to the lines, styles, types, colors, and quality of the merchandise offered, is performing work which is directly and closely related to his managerial and supervisory functions.” Such work is exempt. “His actual participation, except for supervisory training or demonstration purposes, in such activities as making sales to customers, replenishing stocks of merchandise on the sales floor, removing merchandise from fitting rooms and returning to stock or shelves, however, is not.’”30 As later decisions have recognized, this is not to say that certain tasks are always considered exempt or nonexempt - the purpose for which the task is performed must be analyzed. For example, in Bates v. Safeway, Inc.,31 the Court of Appeal explained that Heyen “did not state ... that the same task must always be labeled exempt or nonexempt: “[I]dentical tasks may be ‘exempt’ or ‘nonexempt’ based on the purpose they serve within the organization or department. Understanding the manager’s purpose in engaging in such tasks, or a task’s role in the work of the organization, is critical to the task’s proper categorization. A task performed because it is ‘helpful in supervising the employees or contribute[s] to the smooth functioning of the department’ is exempt, even though the identical task performed for a different, nonmanagerial reason would be ‘nonexempt.’”32 While California’s standard is more difficult to satisfy than the federal standard—which credits as non-exempt work the “hybrid” performance of exempt and non-exempt tasks—the California standard nonetheless allows for strategic arguments to oppose class certification. For example, Seyfarth defeated certification of putative class claims where the plaintiff had relied on Heyen and its progeny to argue that hybrid performance of exempt and non-exempt tasks could not support exempt status.33 In denying certification, the court found that the Heyen test created individualized inquiries: [C]ategorizing the activity will depend on the purpose for which the manager undertook the sale. It will be exempt if it was helpful in supervising the employees or contributed to the smooth functioning of the department. It will be nonexempt if the manager simply was performing work of the same kind as her subordinates. The upshot of this discussion is that misclassification under this theory cannot be determined on a classwide basis simply by looking to the overlap in tasks performed by managers and subordinates.34 30 Id. at 820-821. 31 10 Cal. App. 5th 440 (2017). 32 Bates, 10 Cal. App. 5th at 474 (citing Heyen, 216 Cal. App. 4th at 822-823). 33 Patel v. Nike Retail Servs., Inc., Case No. 14-cv-4781-RS, 2016 WL 1241777 (N.D. Cal. Mar. 29, 2016). 34 Id. at *11.
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