Chapter § 2-11 29 CFR § 541.105. Particular Weight

• Jurisdiction: United States

2-11 29 CFR § 541.105. Particular Weight

To determine whether an employee's suggestions and recommendations are given "particular weight," factors to be considered include, but are not limited to, whether it is part of the employee's job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee's suggestions and recommendations are relied upon. Generally, an executive's suggestions and recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include an occasional suggestion with regard to the change in status of a co-worker. An employee's suggestions and recommendations may still be deemed to have "particular weight" even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status.

2-11:1 Commentary

2-11:1.1 "Particular Weight" Is a Mandatory Element in Determining Exempt Status

Before the 2004 revisions, an employee's authority to hire or fire or to make recommendations about another's employment status, and have those recommendations be given particular weight, was a factor to be considered by a court in determining exempt status. Post-2004 amendments, however, make it a mandatory element of the exemption. Consequently, the revised regulations impose a greater burden upon the employer in establishing exempt status. The question, then, is what constitutes "particular weight?"

• Rainey v. McWane, Inc., 314 F. App'x 693 (5th Cir. 2009) (Fifth Circuit affirmed summary judgment for employer by focusing on a narrow slice of the employees' duties, namely, their authority to exclusively evaluate provisional workers and provide recommendations as to their hiring of regular employees; accordingly, it appears that the "particular weight" requirement need not involve employment decisions across a broad spectrum of duties).

One summary judgment, from a trial court in the Fifth Circuit, explores in depth the "particular weight" requirement in the summary judgment context.

• Monroe Firefighters Ass'n. v. City of Monroe, No. 06-1092, 2009 U.S. Dist. LEXIS 52901 (W.D. La. June 22, 2009) (summary judgment granted for employer on job position of Deputy Fire Chiefs; Fire Chief testified that he relied heavily on the advice and counsel of the Deputy Chiefs on disciplinary matters and performance evaluations; by contrast, the Deputy Chiefs testified that they felt their recommendation did not carry any particular weight and that their job was merely to take employee disciplinary issues up the chain of

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