© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 67 Monitoring or implementing legal compliance measures372 While determining the “primary duty” is a qualitative not quantitative test, a decision by the First Circuit found that the amount of time spent on non-exempt activities could be a significant factor in determining the “primary duty” of a role, particularly where the plaintiff alleged that he was unable to perform his managerial tasks.373 Nonetheless, as the First Circuit recently emphasized, an employee’s primary duty is not determined solely by the amount of time they devote to the different categories of tasks, but rather on the overall character of their position.374 (2) A Customarily Recognized Department or Subdivision To qualify for the executive exemption, an individual must manage the enterprise or a “customarily recognized department or subdivision of the enterprise.” The 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.”375 For example, an employer’s human resources department might have subdivisions for labor relations, pensions and other benefits, personnel management, and equal employment opportunity, each of which has a permanent status and function and could qualify as a recognized subdivision for purposes of the executive exemption.376 Likewise, where an enterprise has more than one establishment, each establishment may qualify as a recognized subdivision.377 Under certain circumstances, employees working a particular shift can constitute a department or subdivision,378 as can groupings or teams of employees engaged in work on a related project or specialty within a larger department.379 A case-by-case analysis is required to determine whether particular groupings or teams qualify as departments or subdivisions. 372 29 C.F.R. § 541.102. The federal regulations also specifically provide that an employee who owns at least a bona fide 20 percent equity interest in the enterprise in which he or she works, regardless of the type of business organization, and who is actively engaged in its management, is considered a bona fide exempt executive. 29 C.F.R. § 541.101. 373 Marzuq, 807 F.3d at 437-41 (fact that 90 percent of time was spent on non-exempt activity combined with other factors raises a question of material fact as to whether store managers were exempt). 374 Marcus v. Am. Cont. Bridge League, 80 F.4th 33, 38 (1st Cir. 2023) (analyzing various job roles for applicability of administrative exemption). 375 29 C.F.R. § 541.103(a); DOL Wage & Hour Fact Sheet #17A (July 2008). 376 29 C.F.R. § 541.103(a); DOL Wage & Hour Fact Sheet #17A (July 2008). 377 29 C.F.R. § 541.103(b). 378 West v. Anne Arundel Cnty., Maryland, 137 F.3d 752, 763 (4th Cir. 1998) (finding that a shift of fire department officers constituted a customarily recognized department or subdivision). 379 Phillips v. Fed. Cartridge Corp., 69 F. Supp. 522, 526 (D. Minn. 1947) (finding that team of four engineers who specialized in designing gauges within larger engineering department was a recognized department and its group leader qualified as exempt executive). See also Gorman v. Cont’l Can Co., No. 76 C 908, 1985 WL 5208, *6 (N.D. Ill. Dec. 31, 1985) (citing Phillips for the proposition that the term “customarily recognized department” can include “small groups of employees working on a related project within a larger department”).
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