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DINGWALL v. FRIEDMAN FISHER ASSOCS.

April 24, 1998

THOMAS A. DINGWALL, Plaintiff, against FRIEDMAN FISHER ASSOCIATES, P.C., Defendant.


The opinion of the court was delivered by: KAHN

MEMORANDUM-DECISION AND ORDER

 Defendant Friedman Fisher Associates, P.C. ("Friedman Fisher") is an engineering consultant firm located in Colonie, New York, that provides various engineering services in New York and western New England. Plaintiff Thomas Dingwall was employed by Friedman Fisher from 1982 until May 1996 during which time he was primarily responsible for designing electrical systems for various projects. During his employment, plaintiff worked more than forty hours per week on many occasions but was never paid overtime compensation. He has now brought this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b) and the N. Y. Labor Law § 663 to recover overtime pay allegedly due him under those statutes and associated regulations. Because the FLSA has a limitations period of two years, see 29 U.S.C. § 255(a), and an action for overtime compensation under N.Y. Labor Law § 663 has a period of six years, see N.Y. Labor Law § 663(3), plaintiff seeks overtime under the federal claim for the two years preceding his claim and under the state claim for the preceding six years. *fn1" Both parties have now moved for summary judgment on all claims.

 I. Discussion

 A. Standard of Review

 A party is entitled to summary judgment if the party can establish that "there is no genuine issue as to any material fact" and that, based on the facts presented, "[it] is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A genuine issue is an issue that, if resolved in favor of the non-moving party, would permit a jury to return a verdict for that party. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997)(citing Anderson, 477 U.S. at 248). In making its determination, a court must view facts, inferences drawn therefrom, and ambiguities in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 B. Fair Labor Standards Act

 For employees covered under its provisions, the FLSA generally requires overtime compensation of one and one-half times the regular rate of pay for time worked in excess of forty hours per workweek. See 29 U.S.C. § 207(a)(1). Under the FLSA's enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. See 29 U.S.C. § 216. However, the FLSA exempts from its overtime requirements any salaried employee who works in a "bona fide executive, administrative or professional" capacity. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.1-.3; Davis v. City of Hollywood, 120 F.3d 1178, 1179 (11th Cir. 1997), reh. and pet. for reh. en banc denied sub nom, Davis v. Rowe, 131 F.3d 157 (1997), cert. filed, No. 97-1320 (Feb 11, 1998). In this case, defendant asserts that plaintiff, as an engineer, falls under the professional exemption. Because the FLSA is a remedial act, the Court must construe its exemptions narrowly. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991), cert. denied, Malcolm Pirnie, Inc. v. Martin, 506 U.S. 905, 121 L. Ed. 2d 222, 113 S. Ct. 298 (1992). Defendant, as the employer, bears the burden of proving that an employee falls within an exempted category. Id.

 The FLSA does not define what type of employee constitutes a "bona fide" professional for whom the FLSA does not require overtime pay. However, the Department of Labor has enacted regulations that establish a two-pronged analysis for determining whether an employee is an exempt professional, consisting of what is referred to as a "duties" test and a "salary" test. See 29 C.F.R. §§ 541.3, 541.103, 541.118, 541.312. In order to qualify under an exempt category, an employee's position must meet both the duties test and the salary test. Cooke v. General Dynamics Corp., 1997 U.S. Dist. LEXIS 21806, 993 F. Supp. 56, , 1997 WL 834515, *1 (D.Conn. 1997).

 1. Duties Test

 The duties test for the professional exemption concerns whether the nature of the employee's duties are appropriately considered professional. See Meringolo v. City of New York, 908 F. Supp. 160, 164 (S.D.N.Y. 1995) (analyzing analogous test for "executive" exemption). The Department of Labor ("DOL") regulations provide two separate means to satisfy this test; a "long" test at 29 C.F.R. § 541.3(a)-(e) and a "short" test at 29 C.F.R. § 541.3(e) (applicable where the employee receives at least $ 250 per week in compensation). See also Freeman v. National Broadcasting Co., Inc., 80 F.3d 78, 82-83 (2d Cir. 1996). The parties here do not dispute that the "short" test is applicable here.

 Under the short test, an employee

 
whose primary duty consists of the performance . . . of work [requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes], which includes work requiring the consistent exercise of discretion and judgment . . . shall be deemed [exempt from the FLSA overtime pay requirements.]

 29 C.F.R. § 541.3(e). The parties agree that the "short" test is applicable in this case.

 Applying this test, the Court concludes that plaintiff's primary duties do satisfy its requirements. Plaintiff's primary responsibility was to design electrical systems for various projects. This is clearly an area requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. Plaintiff concedes that he has in fact obtained an Associates degree in Electrical Technology from Hudson Community College and he refers to himself in his deposition as a "design engineer." Dingwall Dep. at 23.

 Further, his description of his actual duties reveals that the actual duties performed made use of his advanced skills and involved the consistent exercise of discretion and judgment as well. For a typical construction project, plaintiff would meet with one of the principals and determine with the principal and the other designers working on the project, what type of project it was and what would be involved. Plaintiff would then produce "some rough ideas" of what different parts of the project, including lighting and utility service, would require. Dingwall Dep. at 26. Later, after receiving input from other engineers, he would lay out the circuitry. If an existing building was being altered, he would visit the site to determine what changes would be necessary. In designing an electrical system, plaintiff would first look up the client's requirements, then look up a vendor that could provide the necessary equipment, and finally lay the design out on drawings. This process involved calculations made according to various published power standards. In light of these duties, the Court has no difficulty concluding that plaintiff satisfies the duties test for the professional exemption. See Leslie v. Ingalls Shipbuilding, Inc., 899 F. Supp. 1578, 1582 (S.D. Miss. 1995) (responsibility for preparing structural specifications and standards, selecting major equipment related to field, writing engineering progress reports and verifying that structural changes to ship would be sound required exercise of judgment and discretion for purposes of overtime regulations).

 Plaintiff argues that the duties test is not satisfied because he is not a licensed engineer and could not therefore "practice engineering" and because a supervisory engineer was required to sign off on all his work. However, nowhere in the regulation is there a requirement that the employee hold a professional license. Rather, the duties performed and the knowledge they require are the focus of the test. Nor does the fact that plaintiff's designs were reviewed by another engineer mean that plaintiff did not exercise his discretion and judgment in creating his designs. It only indicates that his judgments were subject to the approval of another.

 As support for his argument that an unlicensed engineer performing supervised work is not a "professional," plaintiff points to a statement by the DOL that

 
[the professional exemption] does not exempt all employees of professional employers . . . . Nor does it exempt, as such, those learning a profession. Moreover, it does not exempt persons with professional training, who are working in professional fields, but performing subprofessional or routine work . . . . The field of "engineering" has many person with "engineer" titles, who are not professional engineers, as well as many who are trained in the engineering profession, but are actually working as trainees, junior engineers, or draftsmen.

 29 C.F.R. § 541.308. In the Court's opinion, plaintiff's interpretation misreads this paragraph, which merely requires that an employee personally satisfy the requirements of the duties test by virtue of duties actually performed. *fn2" Thus, it is not enough to be associated with advanced engineering work, or to play some routine or relatively unskilled role in the production of an advanced project. Plaintiff did not play such a role, and to refer to the actual work of electrical design as ...


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