304 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 180 “[P]harmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt … unless they individually meet the criteria established for exemption as executive or administrative employees.” IWC Wage Orders § 1(A)(3)(f). 181 An employee who merely applies knowledge in following prescribed procedures or in determining which procedure to follow does not exercise “discretion and independent judgment,” but rather is simply applying skill and knowledge. “Discretion and independent judgment” consists of comparing and evaluating possible courses of conduct, and making a decision after considering the various possibilities. 182 See IWC Wage Orders § 1(A)(2). 183 Bell v. Farmers Ins. Exch., 87 Cal. App. 4th 805 (2001). 184 Id. at 812. 185 See, e.g., Dalheim v. KDFW-TV, 918 F.2d 1220, 1230 (5th Cir. 1990) (“The distinction § 541.205(a) draws is between those employees whose primary duty is administering the business affairs of the enterprise from those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market.”). 186 Bell, 87 Cal. App. 4th at 823-28. 187 29 C.F.R. §§ 541.2(a), 541.201. 188 Bell, 87 Cal. App. 4th at 826. 189 E.g., Miller v. Farmers Ins. Exch., 481 F.3d 1119 (9th Cir. 2007) (criticizing Bell’s interpretation of the administrative/professional dichotomy and finding insurance adjusters categorically to qualify as exempt employees). 190 29 C.F.R. § 541.203(a). See also former C.F.R. § 541.205(c)(5) (identifying insurance adjusters within the universe of employees often covered by the administrative exemption). The current regulations still require an adjuster to meet the duties test to qualify as exempt, which requires the adjuster to perform such activities as “interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual information to prepare damages estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation.” 191 E.g., Munizza v. State Farm Mut. Auto. Ins. Co., 103 F.3d 139 (9th Cir. 1996) (memorandum); Blinston v. Hartford Accident & Indemn. Co., 20 Wage & Hour Cas. (BNA) 6 (W.D. Mo. 1970). 192 Miller v. Farmers Ins. Exch., 481 F.3d 1119 (9th Cir. 2007). 193 481 F.3d at 1124, 1132. 194 154 Cal. App. 4th 164 (2007), review granted, No. S156555 (Cal. Sept. 21, 2007). 195 Id. at 177. 196 But see Combs v. Skyriver Commc’ns, Inc., 159 Cal. App. 4th 1242 (2008) (upholding trial court finding that manager of capacity planning and director of network operations was exempt as administrative employee, focusing on “salary” and “duties” tests set forth in IWC Wage Order 4-2001 rather than administrative/production worker dichotomy set forth in Bell v. Farmers Ins. Exchange, 87 Cal. App. 4th 805 (2001), where plaintiff primarily engaged in work “directly related to management policies or general business operations” that involved customary and regular exercise of discretion and independent judgment). 197 53 Cal. 4th 170 (2011). 198 Harris v. Superior Ct. (Liberty Mut. Ins. Co.), 53 Cal. 4th 170 ( 2011). 199 29 C.F.R. § 541.700(a). 200 29 C.F.R. § 541.106(a)-(c). 201 Ramirez v. Yosemite Water Co., 20 Cal. 4th 785 (1999). 202 20 Cal. 4th at 852. 203 Batze v. Safeway, Inc., 10 Cal. App. 5th 440, 444-45 ( 2017) (affirming trial court’s ruling for employer that first and second assistant managers spent more than one-half of their workweek in managerial tasks and that they met all the other qualifications to be exempt from overtime rules). 204 Mitchell v. Yoplait, 122 Cal. App. 4th Supp. 8 2004) (upholding, as authorized by Lab. Code § 511(b), alternative workweek schedule by which employees in relevant work unit voted for three twelve-hour shifts and one six-hour shift a week, by which only the last two hours in each twelve-hour shift were considered overtime entitled to time-and-one-half wages, with no overtime premium pay being due for the ninth and tenth hours of work on the twelve-hour shifts). 205 Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1327-28 (2018). 206 29 C.F.R. § 541.600(d). 207 Lab. Code § 515.5. 208 Overtime Exemption for Computer Software Employees, https://www.dir.ca.gov/oprl/ComputerSoftware.htm#:~:text=In%20accordance%20with%20Labor%20Code,from%20%24112%2C065.20% 20to%20%24115%2C763.35%20effective (last visited Mar. 25, 2024). 209 See IWC Wage Orders § 1(A)(3)(g). 210 29 C.F.R. § 541.5. 211 29 C.F.R. § 541.505(b).
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