© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 71 However, in Marzuq v. Cadete Enterprises, Inc., the First Circuit vacated a decision granting an employer’s motion for summary judgment based on the similarities between that case and Burger King, holding that a dispute of material fact existed as to whether two store managers at a food retail store satisfied the primary duties test. 405 In Marzuq, the First Circuit emphasized that the managers alleged that they spent 90 percent of their time serving customers, making food, sweeping floors, and performing other non-managerial duties and had insufficient time to perform their management duties.406 They also claimed to have had limited decision-making authority, were subject to close supervision, and received very similar pay to non-exempt employees.407 Based on these allegations, the court reversed the grant of summary judgment. In Goodrow v. Lane Bryant, Inc., Massachusetts’s highest court held that an employee who worked as a “co-sales manager” at a retail store was not a “bona fide executive” exempt from overtime provisions even though she had temporarily assumed managerial duties at the store.408 The Court found that the employee did not qualify for the exemption because she did not spend more than 50 percent of her time performing managerial duties, she directed the work of only one part-time sales associate and had no authority to influence personnel decisions, and she was primarily occupied with carrying out day-to-day activities of the retail business.409 The Massachusetts Appeals Court has reaffirmed this 50% presumption.410 b. Administrative Employee Exemption To qualify for the administrative exemption, an employee must meet all of the following tests: 1. Effective January 1, 2020, the employee must be compensated on a salary basis at a rate not less than $684.00 per week. The 2024 DOL Final Rule proposed to stores, and restaurants who spent 65-90 percent of their time serving customers and performing other non-exempt tasks had a primary duty of “management” because they were “in charge” of their stores); Langley v. Gymboree Operations, Inc., 530 F. Supp. 2d 1297 (S.D. Fla. 2008) (finding store manager for children’s clothing store exempt); Posely v. Eckerd Corp., 433 F. Supp. 2d 1287 (S.D. Fla. 2006) (finding store manager for pharmacy exempt); Jackson v. Advance Auto Parts, Inc., 362 F. Supp. 2d 1323 (N.D. Ga. 2005) (finding store manager for auto parts store exempt); but see Morgan, 551 F.3d at 1269 (store managers nonexempt because “the overwhelming evidence at trial showed Plaintiff store managers spent 80 to 90 percent of their time performing non-exempt, manual labor”). 405 Marzuq, 807 F.3d at 446-47. The First Circuit also distinguished Burger King because that decision was based on the district court’s factual findings after a bench trial, whereas in Marzuq, the district court was required, on a summary judgment motion, to view all facts in the light most favorable to the plaintiff-managers. Id. at 439. 406 Id. at 434. 407 Id. The First Circuit analyzed four factors in evaluating the primary duty: (1) relative importance of managers’ exempt and other duties; (2) amount of time spent on exempt work; (3) freedom from direct supervision; and (4) the relationship between managers’ salaries and the wages paid hourly employees for similar non-exempt work. Marzuq, 807 F.3d at 431. 408 Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 173 (2000). 409 Id. at 172. 410 See Spinosa v. Tufts, 98 Mass. App. Ct. 1, 17 (2020) (“as a rule of thumb, for tasks to constitute an employee’s primary duty, the employee must devote more than fifty percent of his or her time to these duties”) (internal quotation marks, citations, and alterations omitted).
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