Litigating California Wage & Hour and Labor Code Class Actions

productivity, handling employee complaints, disciplining employees, planning work,
determining techniques to be used, distributing work, deciding on types of materials,
supplies, machinery and tools to be used or merchandise to be bought, stocked, and sold,
controlling the flow and distribution of merchandise and supplies, and providing for
employee safety. 18
Seyfarth Shaw has successfully defended many cases where liability turned on whether a
particular job duty qualifies as exempt or non-exempt. From our experience in such cases,
it is important to carefully analyze cases that have addressed similar duties under the FLSA
regulations that are expressly incorporated into the Wage Orders. For example, we
defended a case for a large HMO that turned on whether working pharmacy managers
were misclassified as exempt executives. One of the main duties of the managers was to
check the work of other pharmacy employees for medication errors in filling prescriptions—
a duty also performed by licensed pharmacists who were not managers. We obtained
summary judgment by relying on numerous cases holding that (1) a manager checking
another employee’s work for compliance with a standard qualifies as exempt “supervision” 19
and (2) it does not alter the analysis that non-managers also perform the same task. 20
Another of the federal regulations expressly incorporated into the IWC Wage Orders is
(former) Section 541.108, which includes in the definition of exempt work all work that is
“directly and closely related to exempt work.” The FLSA regulation explains that this
concept allows seemingly non-exempt duties to be treated as exempt duties:
[It] brings within the category of exempt work not only the actual management of the
department and the supervision of the employees therein, but also activities which are
closely associated with the performance of the duties involved in such managerial and
supervisory functions or responsibilities. The supervision of employees and the
management of a department include a great many directly and closely related tasks which
are different from the work performed by subordinates and are commonly performed by
supervisors because they are helpful in supervising the employees or contribute to the
smooth functioning of the department for which they are responsible. Frequently such
18
19
20
29 C.F.R. § 541.102. Although the FLSA regulations were updated in 2004, the definition of exempt “executive” work
has remained substantially the same for decades.
See Sturm v. Toc Retail, Inc., 864 F. Supp. 1346, 1351 (M.D. Ga. 1994) (convenience store manager checking for
employees compliance with “Majik Market dos and don’ts” was exempt supervision even though often performed by
senior clerks as well as the manager); see also Baldwin, 266 F.3d at 1117 (trailer park managers’ duty of ensuring that
park employees followed company policy was supervisory and, therefore, exempt work); Beauchamp v. Flex-N-Gate
LLC, 357 F. Supp. 2d 1010, 1015-17 (E.D. Mich. 2005) (supervisory duty for a plant manager to “ensure that employees
in their charge actually meet [company] standards in their daily work”).
Sturm, 864 F. Supp. 1346; see also Baldwin, 266 F.3d at 1115 (“[Having non-exempt employees perform] managerial
tasks does not render the tasks non-exempt.”); Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 239 (C.D. Cal.
2006) (“[T]he (assistant managers) seem to consider any task performed by an hourly employee to be a non-exempt
task. That is not the law.”).
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 8