70 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP (a) Federal Regulations The federal regulations provide some specific guidance regarding when an employee performing non-exempt duties is likely to qualify as an executive employee. For example, the regulations specify that an assistant manager in a retail establishment may meet the requirements of the exemption even if he or she performs non-exempt work, such as serving customers, cooking food, stocking shelves, and cleaning the establishment, as long as the assistant manager’s primary duty is management.398 The regulations specifically note that an assistant manager can simultaneously supervise employees and serve customers, or direct the work of other employees and stock shelves.399 The regulations governing the executive exemption also provide examples of circumstances in which employees who perform both exempt and non-exempt duties do not meet the exemption requirements. For instance, a working supervisor whose primary duty is performing non-exempt work on a production line in a manufacturing plant is not exempt merely because the employee occasionally has some responsibility for directing the work of other non-exempt production line employees, when perhaps the exempt supervisor is unavailable.400 Similarly, an employee whose primary duty is to work as an electrician is not an exempt executive even if the employee directs the work of other employees on the job site, orders parts and materials, and handles requests from the prime contractor.401 (b) Case Law Many courts have determined that an employee’s primary duty is management despite the fact that the employee concurrently performs non-exempt duties.402 For example, in Donovan v. Burger King Corporation, the First Circuit held that assistant managers in forty-four fast food restaurants were exempt executives even though they spent approximately 40 percent of their time performing such tasks as preparing food and taking orders because performance of that type of non-exempt work “does not negate the conclusion that the employee’s primary duty is management.”403 The court found that these employees were truly “in charge” of the restaurants during their shifts and therefore met the primary duties test for the exemption.404 398 29 C.F.R. § 541.106(b). 399 Id. 400 29 C.F.R. § 541.106(c). 401 Id. 402 See, e.g., Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982). 403 Id. 404 Id. Similarly, some courts have found that store managers at various types of retail establishments who spent as much as 90 percent of their time on non-management jobs, such as pumping gas, waiting on customers, and stocking shelves, were exempt because they simultaneously were responsible for management functions, such as hiring, firing, and supervising other employees; dealing with vendors; and ensuring proper accounting of inventory and cash. See Jones v. Virginia Oil Co., 69 F. App’x 633 (4th Cir. 2003) (finding manager of combination convenience store and fast food restaurant exempt despite spending 75-80 percent of her time on “basic line-worker tasks” because she simultaneously supervised employees, handled customer complaints, and dealt with vendors); Murray v. Stuckey’s, Inc., 939 F.2d 614 (8th Cir. 1991) (finding managers for chain of gas stations, convenience
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