It’s October. You go to a pumpkin patch. While you’re busy examining pumpkin after pumpkin, you notice a farm employee is busy replenishing the patch by unloading pumpkins from a truck.  When you’re finished, the same employee offers to help you haul your selections to the cash register.  Then he steps behind the cash register and completes the transaction.  You’re outraged when he says you owe $70 for 3 pumpkins.  You ask to speak with a manager.  When he tells you he is a manager, you’re even more outraged: there’s no way he meets the duties test for the executive exemption.

Even if we assume he customarily and regularly directs the work of two or more employees and has authority to hire and fire (generous assumptions), to qualify for the exemption, a manager must also have a “primary duty” of management of the enterprise.  What does that mean? Well, it means that a manager who spends the majority of her time performing non-exempt tasks – stocking shelves, waiting tables, parking cars – may have turned into a pumpkin.

Generally, the fact that a manager has management responsibilities is not necessarily enough to meet the exemption if he spends the majority of his time performing non-exempt tasks (e.g., unloading pumpkins).  This was the lesson learned from a recent California appellate court decision upholding a $26,184.60 award of overtime pay to a former assistant store manager who claimed she was misclassified as exempt under California state law because she spent more than 50% of her work hours performing non-exempt tasks such as bagging groceries and stocking shelves. 

The court rejected  the employer’s argument that the trial court failed to properly account for hours the manager spent simultaneously performing exempt and non-exempt tasks (e.g., actively managing the store while concurrently performing some checking and bagging of customer groceries).  Under state law, the employee’s actual job tasks rendered her non-exempt despite her management role.

Under federal law, the amount of time spent performing exempt work is considered a useful guide in determining whether exempt work is the primary duty of an employee but time alone is not the sole test.  Rather, a determination of an employee’s primary duty “must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.” 

Factors to consider include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Employers should regularly assess the actual work performed by their exempt employees on a day-to-day basis to ensure they  meet (and continue to meet) the primary duty test under both federal and applicable state law.  It shouldn’t take a lawsuit to make you realize that your former manager was a pumpkin when all this time you thought she was a carriage.