The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Yvette Rubery ("Rubery"), commenced what purports to be a collective action against defendant Buth-Na-Bodhaige ("The Body Shop" or "defendant"), pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA") and New York Labor Law § 651(5)(c) for The Body Shop's failure to pay Rubery and other Body Shop managers overtime pay. Rubery claims that she often worked over 40 hours per week, but was not compensated at overtime pay (time and a half) because she and others were improperly classified by defendant as "exempt" employees under the FLSA.
There are three motions pending: defendant's motion for summary judgment dismissing the complaint (Dkt. #27); plaintiff's cross-motion for partial summary judgment (Dkt. #48); and defendant's motion to strike portions of plaintiff's affirmation and certain evidence submitted in support of partial summary judgment (Dkt. #57).*fn1
The parties' claims relative their respective motions for summary judgment are straight-forward. Defendant contends that the complaint should be dismissed because plaintiff falls within the executive exemption of the FLSA. Defendant contends that it has demonstrated under the FLSA and controlling Department of Labor regulations that Rubery's primary job duties were management and that she supervised two or more employees. Rubery opposes the motion on the grounds that there are material issues of fact as to whether plaintiff's primary duties were managerial. Plaintiff also contends that the proof is clear that she did not supervise two or more employees and, therefore, plaintiff cross-moves for summary judgment as a matter of law as to that aspect of the case.
Defendant's motion is denied. I believe that there are material issues of fact as to whether plaintiff's primary job responsibilities were considered "management." As one court noted: "[D]eciding whether an employee is exempt must be a voyage through fact-bound waters. Although there are a great many stars of law to navigate by, the course turns on the facts of an employee's job duties." Harris v. District of Columbia, 741 F. Supp. 254, 259 (D.D.C. 1990).
Under the FLSA, employers must pay overtime for "employment in excess of [40 hours per week] at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1). Certain types of employees, however, are exempt from the overtime requirements, including "any employee employed in a bona fide executive, administrative, or professional capacity. . . ." Id. § 213(a)(1). Defendant contends that Rubery and others similarly situated were "executives" and exempt from the overtime requirements.
Regulations have been established to determine whether an employee fits within this exempt category. The parties agree that the so-called "short test" at 29 C.F.R. § 541.1(f) (2003) applies because that was a Regulation in effect at the time of plaintiff's employment.
Under this Regulation, an employee is deemed to be exempt from FLSA's overtime provision as an "executive" if:
1. She was compensated on a salary basis of not less than $250 per week;
2. Her "primary duty" consisted of "management of the enterprise . . . or of a . . . subdivision thereof."
3. Her work included the "customary and regular direction of the work of two or more other employees."
The parties agree that plaintiff met the salary requirement, but there is considerable disagreement about the other two requirements.
At the outset, it should be noted that the employer has the burden of demonstrating that it is entitled to the exemption. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Martin v. Malcolm Pirney, Inc., 949 F.2d 611, 614 (2d Cir. 1991). Furthermore, the FLSA is a remedial statute, and its exemptions are to be construed narrowly against the employer. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). Moreover, in determining whether an employee is exempt, there must be an intensive inquiry into the facts of the particular case. Wright v. Aargo Security Servs.,No. 99 Civ. 9115, 2001 WL 91705, *10 (S.D.N.Y. Feb. 2, 2001).
With these standards in mind, I believe there are material issues of fact that must be resolved by a jury as to whether Rubery's primary duties were managerial or not. Regulations at 29 C.F.R. § 541.13 state that it may be taken as a "rule of thumb" that primary duty "means the major part or over 50%, of the employee's time." Furthermore, the Regulations list five factors to consider in determining whether the employee's primary duty is managerial: (1) the amount of time spent performing managerial duties;(2) the relative importance of the managerial duties as compared with other duties; (3) the frequency with which she exercised the discretionary power; (4) her relative freedom from supervision; and (5) the relationship between her salary and the wages paid to employees doing similar non-exempt work. 29 C.F.R. § 541.13. Regulations at 29 C.F.R. § 541.102 define what is meant by ...