Chapter § 2-10 29 CFR § 541.104. Two or More Other Employees

• Jurisdiction: United States

2-10 29 CFR § 541.104. Two or More Other Employees

(a) To qualify as an exempt executive under § 541.100, the employee must customarily and regularly direct the work of two or more other employees. The phrase "two or more other employees" means two full-time employees or their equivalent. One full-time and two half-time employees, for example, are equivalent to two full-time employees. Four half-time employees are also equivalent.

(b) The supervision can be distributed among two, three or more employees, but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. Thus, for example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each such supervisor customarily and regularly directs the work of two of those workers.

(c) An employee who merely assists the manager of a particular department and supervises two or more employees only in the actual manager's absence does not meet this requirement.

(d) Hours worked by an employee cannot be credited more than once for different executives. Thus, a shared responsibility for the supervision of the same two employees in the same department does not satisfy this requirement. However, a full-time employee who works four hours for one supervisor and four hours for a different supervisor, for example, can be credited as a half-time employee for both supervisors.

Note that the management must be of two or more employees, not subcontractors.

• Villegas v. Dependable Constr. Servs., Inc., No. 4:07-cv-2165, 2008 U.S. Dist. LEXIS 98801 (S.D. Tex. Dec. 8, 2008) (citing FLSA Opinion Letter 2007-3).

2-10:1 Commentary

2-10:1.1 "80-Hour Rule"

Prior to the 2004 revisions, an employee, to be categorized as an exempt executive employee, had to "customarily and regularly" direct the work of at least two other employees. There is the same requirement in the 2004 regulations, and (unlike the pre-2004 regulations) the revised regulations define "customarily and regularly" as meaning "a frequency that must be greater than occasional but which, of course, may be less than constant." The regulations go on to state, somewhat more helpfully, that tasks or work performed "customarily and regularly" include work normally and recurrently performed every workweek; it does not include isolated or one-time tasks. An issue is whether the requisite number of employees are being managed.

One case within the Fifth Circuit has looked...