C.F.R.
»
Title 29
» CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER A—REGULATIONS › PART 541—DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, COMPUTER AND OUTSIDE SALES EMPLOYEES › Subpart B—Executive Employees
(a) Concurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption if the requirements of § 541.100 are otherwise met. Whether an employee meets the requirements of § 541.100 when the employee performs concurrent duties is determined on a case-by-case basis and based on the factors set forth in § 541.700. Generally, exempt executives make the decision regarding when to perform nonexempt duties and remain responsible for the success or failure of business operations under their management while performing the nonexempt work. In contrast, the nonexempt employee generally is directed by a supervisor to perform the exempt work or performs the exempt work for defined time periods. An employee whose primary duty is ordinary production work or routine, recurrent or repetitive tasks cannot qualify for exemption as an executive.
(b) For example, an assistant manager in a retail establishment may perform work such as serving customers, cooking food, stocking shelves and cleaning the establishment, but performance of such nonexempt work does not preclude the exemption if the assistant manager's primary duty is management. An assistant manager can supervise employees and serve customers at the same time without losing the exemption. An exempt employee can also simultaneously direct the work of other employees and stock shelves.
(c) In contrast, a relief supervisor or working supervisor whose primary duty is performing nonexempt work on the production line in a manufacturing plant does not become exempt merely because the nonexempt production line employee occasionally has some responsibility for directing the work of other nonexempt production line employees when, for example, the exempt supervisor is unavailable. Similarly, an employee whose primary duty is to work as an electrician is not an exempt executive even if the employee also directs the work of other employees on the job site, orders parts and materials for the job, and handles requests from the prime contractor.
Notes of Decisions
Morgan v. Fam. Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008).
· cites it 3× “” See 29 C.F.R. § 541.106 (c) (2006) (contrasting role of working supervisor to exempt executive).”
Johnson v. Big Lots Stores, Inc., 604 F. Supp. 2d 903 (E.D. La. 2009).
· cites it 5× “” 29 C.F.R. § 541.106 (a). “Whether an employee meets the [executive exemption criteria] when the employee performs concurrent duties is determined on a case-by-case basis.”
Mullins v. City of New York, 653 F.3d 104 (2d Cir. 2011).
· cites it 2× “Plaintiffs do not, however, have discretion to determine when they perform any non-exempt duties, see 29 C.F.R. § 541.106 (a) (“Generally, exempt executives make the decision regarding when to perform nonexempt duties.”
Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567 (E.D. La. 2008).
· cites it 2× “” 29 C.F.R. § 541.106 (a). “Whether an employee meets the [executive exemption criteria] when the employee performs concurrent duties is determined on a case-by-case basis.”
Ahmed v. T.J. Maxx Corp., 103 F. Supp. 3d 343 (E.D.N.Y 2015).
· cites it 2× “138, at 6-7); see also 29 C.F.R. § 541.106 (“Concurrent performance of exempt and nonexempt work does not disqualify an employee from the' executive exemption if the requirements of § 541.”
In Re Fam. Dollar FLSA Litig., 637 F.3d 508 (4th Cir. 2011).
“29 C.F.R. § 541.106 (2004). Grace apparently had a good handle on what was necessary to run her store and make it a success, and she expressed pride in believing that she did it better than other store managers in the Family Dollar chain.”
Angelo v. United States, 57 Fed. Cl. 100 (Fed. Cl. 2003).
· cites it 2× “Moreover, 29 C.F.R. § 541.106 , a regulation promulgated as an interpretive aid for § 541.”
Rooney v. Town of Groton, 577 F. Supp. 2d 513 (D. Mass. 2008).
· cites it 3× “29 C.F.R. § 541.106 (a). As the regulation makes clear by example, an assistant manager in a retail establishment can stock shelves, cook food, clean the premises, and attend to customers but still be considered an exempt executive.”
Marzuq v. Cadete Enter., Inc., 807 F.3d 431 (1st Cir. 2015).
· cites it 2× “at (citing 29 C.F.R. § 541.106 (a)). Hence, echoing our holding in Burger King, the district court found it undisputed that plaintiffs had management as their primary duty, even though they spent "much of th?ir time" on nonexempt work and "had little discretion to make…”
Albert Itterly v. Fam. Dollar Stores, 606 F. App'x 643 (3rd Cir. 2015).
· cites it 3× “”); 29 C.F.R. § 541.106 (a) (“Concurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption.”
— 29 C.F.R. § 541.106(a) — 1 case
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