Litigating California Wage & Hour and Labor Code Class Actions

exempt work is of a kind which in establishments that are organized differently or which are
larger and have greater specialization of function, may be performed by a non-exempt
employee hired especially for that purpose. 21
In other words, non-discretionary work can be “directly and closely related” to exempt
work—and hence itself considered exempt work—even if it is not strictly speaking essential
to the exempt work, 22 and even if it is work that need not be performed by managers. 23 As
long as the work is related to a management function, it is considered to be exempt. These
amendments raise substantial arguments that activities, which when viewed in the abstract
seem non-exempt, may be considered exempt if they are undertaken with the purpose of
effectuating exempt functions of a manager’s job. Thus far, there are no published
decisions construing this regulation and applying it to an exemption question under
California law.
Another important issue in these cases that Ramirez does not resolve is how one applies
the purely quantitative approach to time spent simultaneously performing exempt and nonexempt
tasks: Is this time exempt, non-exempt, or some combination of the two? Under
federal law, a manager might concurrently be engaged in hands-on, non-exempt type work
and be monitoring the operation of a business for managerial purposes (e.g., pouring
coffee at a restaurant while directing work). 24
Employers received a different answer under California law when, in 2005, the First District
Court of Appeal in Murphy v. Kenneth Cole Productions, Inc. 25 rejected an employer’s
argument that time spent simultaneously managing and engaged in non-exempt work
counts entirely as “exempt time.” The California Supreme Court, by granting review of the
meal period issues within Murphy but not the concurrent duties issue, effectively rendered
the Murphy discussion of concurrent duties unciteable. Nonetheless, the appellate court’s
21
22
23
24
25
Former 29 C.F.R. § 541.108(a).
Harrison v. Preston Trucking Co., 201 F. Supp. 654, 658-59 (D. Md. 1962) (“[T]he test is not whether the work is
essential to the proper performance of the more important work, but whether it is related. Thus, notemaking, by a
consultant when standing alone or separated from his primary duties, would be routine and, hence, not directly and
closely related within the meaning of the regulations, but at the same time such work is necessary to the proper
performance of his primary duties and thus is considered to be ‘directly and closely related’ when performed by the
consultant.”).
Adams v. United States, 36 Fed. Cl. 91, 98 (1996) (“A supervisor does not become non-exempt merely by doing tasks
which are incidental to his main work, even if non-supervisory workers might perform them as well. The question is
whether a supervisor engages in those tasks because he is a supervisor.”).
See Donovan v. Burger King Corp., 672 F.2d 221, 225-26 (1st Cir. 1982). The 2004 FLSA regulations added a new
regulation entitled “concurrent duties,” 29 C.F.R. § 541.106, explaining that a manager is engaged in exempt
managerial work when he is engaged simultaneously in exempt and non-exempt work. This new regulation has not
been incorporated into the IWC regulations, however.
134 Cal. App. 4th 728 (2005), revd. on other grounds in Murphy v. Kenneth Cole Products, Inc., 40 Cal. 4th 1094
(2007). Feb. 22, 2006.
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