The Fair Labor Standards Act’s executive exemption applies to managers whose primary job function involves the supervision of two or more full time equivalents. In recent years, a large number of retailers, hospitality industry employers, and other companies have faced FLSA collective action claims alleging that the purported managers did not meet the requirements for the executive exemption. Last week, the Second Circuit Court of Appeals revived claims from lower-level managers whose complaints did not specify the amount of overtime allegedly worked.

In Abbott v. Comme Des Garcons Ltd., the plaintiffs are assistant and sales managers who claim that they do not have the requisite authority to fall under the executive exemption. The district court dismissed the suit because the complaint did not specify the amount of overtime worked during the relevant workweeks. The Second Circuit reversed this decision, finding that the plaintiffs adequately stated claims that they regularly worked through breaks and exceeded 40 hours in a given workweek. The court said that plaintiffs do not need to provide detailed records of hours worked to maintain their claims.

Many employers have converted lower-level managers to nonexempt status to avoid these overtime claims. Smaller retail operations may have difficulty proving that any employee other than the store’s general manager meets the FLSA duties test for the executive exemption. As with any FLSA exemption claim, the company should have both a clear job description that demonstrates the requisite duties as well as proof that the employees’ actual job follows that description.

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