Chapter § 2-8 29 CFR § 541.102. Management

• Jurisdiction: United States

2-8 29 CFR § 541.102. Management

Generally, "management" includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

2-8:1 Commentary

2-8:1.1 Management as the "Primary Duty" of the Employee

Those employees who fit under the executive exemption are managers. Management is not that difficult to define. What is difficult to determine is whether management is the "primary duty" of the employee. If so, an employee is exempt; if not, the employee is entitled to be paid overtime. The regulations and Texas courts interpreting the regulations do not look to a percentage test—i.e., more than 50 percent spent in management triggers the exemption, less than 50 percent does not. A more nuanced analysis is used.

• Mims v. Starbucks Corp., No. H-05-0791, 2007 U.S. Dist. LEXIS 9 (S.D. Tex. Jan. 2, 2007) (store managers for Starbucks bring claim for overtime, alleging that their performance of non-executive duties, such as making drinks, disqualifies them from being classified as exempt; court rejects argument and grants summary judgment; while employees may have spent less than 50 percent of their time in management, courts will not use arbitrary test in determining primary duty; primary duty is found from what the employee does that is of principal value to employer, not in the collateral tasks the employee may perform).
• Lasley v. Academy, LTD. (2019 WL 6840582) (S.D. Tex. 2019) (summary judgment denied to employer even though plaintiff admitted on his deposition that he was responsible for the overall performance of the store where he also testified that he spent 80 percent of his work time ringing up sales; lesson to defense lawyers is to continue to press for details of duties even though plaintiff concedes broad issue).

Since the analysis is nuanced, going beyond a simplistic "clock standard," the courts in the Fifth Circuit look to four factors set out in the regulations.

An interesting aspect of management as the primary duty arises in the so-called "first responder" cases. In 2018, a district court in the Western District of Texas grappled with the issue of whether management firefighters could avail themselves of first responder status (i.e., nonexempt) if they supervised first responders. The answer was no.

• Miller v. Travis Cty., No. 1:16-CV-1196-RP, 2018 U.S. Dist. LEXIS 27444 (W.D. Tex. Feb. 21, 2018) (high-level employees in public service, such as police lieutenants or fire chiefs, do not lose their exempt status under the executive exemption merely because they may perform first-responder tasks or supervise first responders; the real issue is whether their primary duty remains managerial; court denied dueling summary judgments, noting that what is a

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