Much like the 2010 San Francisco Giants, at first glance, the court’s ruling in Dipasquale v. Docutek Imaging Solutions, Inc. et al.pdf Case No. 10-cv-60349-JEM (S.D. Fl. Nov. 12, 2010) appears to be nothing to write home about. Upon closer inspection, however (and in the case of the Giants, eight months and a World Series championship later), the real value of Dipasquale becomes clear: The Southern District of Florida found an employee exempt even though the management duties took up a minority of his time. In keeping with the baseball analogy, this is a home run for employers.
Dipasquale formerly worked as the service manager to Docutek Imaging Solutions, Inc. In his Complaint, he alleged a violation of the FLSA for failure to pay minimum wage, failure to pay overtime, as well as a violation of Florida law regarding the payment of his commissions, and a declaratory judgment that the defendants willfully violated the FLSA. In other words, his claims were typical of those frequently brought against employers in class/collective actions involving lower-level managerial employees. And, like a call to swing away with a 3-0 count, the defendants unsurprisingly moved for summary judgment on the grounds that Plaintiff was exempt from the FLSA, and that he had been fully paid all his wages with regard to commissions.
The Court proceeded to perform a detailed analysis of Dipasquale’s job duties to determine whether or not he performed management activities. Those activities, in no particular order, consisted of: running the service department of fifteen to twenty-five employees; interviewing potential service technicians; making recommendations regarding employee’s pay and position; directing the work of other employees; changing employees’ duties if necessary; communicating with the employees on a daily basis; traveling to the Miami office to ensure the employees there were “being on point like they were supposed to”; appraising employees’ productivity and efficiency; disciplining employees (although he never actually fired anyone); and apportioning work among his employees. In response to the plaintiff’s furtive attempt to remind the court that he did not perform all of the various duties listed under 29 C.F.R. § 541.102, the court reiterated what many courts have stated before: One does not have to perform all of the duties, and that the list is intended to provide examples.
More important for employers everywhere, however, is what the court considered next: Like a left-handed pinch hitter only called up to face a right handed pitcher late in the game, the plaintiff claimed that he only spent ten to twenty percent of his time performing the managerial work. The court acknowledged the plaintiff’s conclusory opinion, and then called for some relief. Using the regulations appropriately as a playbook, the court reminded Dipasquale that even if an employee spends less than 50 percent of his time performing exempt duties, he may still meet the exempt requirement if “other factors support such a conclusion.” 29 C.F.R. § 541.700(b). With this in mind, the court hurled an unhittable fastball straight down the plate: While the plaintiff may have only spent 10 to 20 percent of his time performing exempt managerial work, that managerial work was his primary duty. Along with the myriad duties listed above, he was almost completely free of direct supervision (despite requiring a manager’s recommendation for hiring and firing), and his salary was anywhere from $7,000 to $12,000 higher than a non-exempt service technician.
Following that determination, the court went 1-2-3 with the rest of the issues involved for the executive exemption: Dipasquale regularly supervised more than two other employees in the service department, and that his recommendations as to hiring and firing were given significant weight. With no federal claims remaining, coupled with other factors including judicial economy, the court summarily dismissed the state claims for unpaid commissions, as well. Thus, at the end of the game, the home team jogs off the field with a win.
The Bottom Line: While not necessarily groundbreaking law, the Southern District of Florida brushed back employees from a plate with a little chin music, and reminded employers everywhere that you don’t have to spend more than 50 percent of your time performing exempt work to ultimately be exempt. Play ball!