Losing the Battle But Winning the War

 

[author: Mark W. Batten]

The Tenth Circuit ruled on Wednesday in Maestas v. Day & Zimmerman LLC (pdf) that an employee's "primary duty" -- which is the relevant inquiry in determining whether an employee is exempt from the Fair Labor Standards Act -- is a question of fact, not a question of law.  Although the ruling was a setback for the employer in the particular case, reversing the district court's grant of summary judgment to the employer, in the bigger picture the decision may be more helpful than harmful to employers.

The four named plaintiffs in this FLSA collective action were part of a private security force at Los Alamos National Laboratory.  They contend that they were misclassified as exempt employees, because although they had some managerial functions, their primary duty was to act as "first responders."  The employer moved for, and was granted, summary judgment in the district court. 

The Tenth Circuit reversed, holding that the question of an employee's "primary duty" is a question of fact, not of law, so that summary judgment was inappropriate unless there was no genuine dispute of fact about the plaintiffs' duties.  Finding that there was such a dispute as to three of the four plaintiffs, the Court of Appeals reversed.

Although nominally a setback for the employer, in the long run the decision is more likely to be helpful to those opposing collective actions alleging misclassification.  The court emphasized that "there is no requirement that an exempt executive employee spend more than half her time on managerial tasks," and so less objective factors, such as the relative importance of the various duties, become paramount.  That is an inquiry often ill-suited to summary judgment, but it is also an inquiry that may be ill-suited to determination on a class basis.  Thus while the Tenth Circuit's decision may be cited in the future by plaintiffs hoping to avoid summary judgment, it may see greater use by employers arguing that a misclassification case cannot be certified.