Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 93 • 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 • Monitoring or implementing legal compliance measures 504 While determining the “primary duty” is a qualitative not quantitative test, a decision by the First Circuit found that the amount of time spent on non-exempt activities could be a significant factor in determining the “primary duty” of a role, particularly where the plaintiff alleged that he was unable to perform his managerial tasks. 505 (2) A Customarily Recognized Department or Subdivision To qualify for the executive exemption, an individual must manage the enterprise or a “customarily recognized department or subdivision of the enterprise.” The phrase “a customarily recognized department or subdivision” is intended to “distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function.” 506 For example, an employer’s human resources department might have subdivisions for labor relations, pensions and other benefits, personnel management, and equal employment opportunity, each of which has a permanent status and function and could qualify as a recognized subdivision for purposes of the executive exemption. 507 Likewise, where an enterprise has more than one establishment, each establishment may qualify as a recognized subdivision. 508 Under certain circumstances, employees working a particular shift can constitute a department or subdivision , 509 as can groupings or teams of employees engaged in work on a related project or specialty within a larger department. 510 A case-by-case analysis is required to determine whether particular groupings or teams qualify as departments or subdivisions. 504 29 C.F.R. § 541.102. The federal regulat ions also specifically provide that an employee who owns at least a bona fide 20 percent equity interest in the enterprise in which he or she works, regardless of the type of business organizat ion, andwho is act ively engaged in it s management , is considered a bona fide exempt execut ive. 29 C.F.R. § 541.101. 505 Marzuq , 807 F.3d at 437-41 (fact that 90 percent of t ime spent was on non-exempt act ivity combinedwith other factors raises a quest ion of material fact as to whether store managers were exempt ). 506 29 C.F.R. § 541.103(a); DOL Wage & Hour Fact Sheet #17A (July 2008). 507 29 C.F.R. § 541.103(a); DOL Wage & Hour Fact Sheet #17A (July 2008). 508 29 C.F.R. § 541.103(b). 509 West v. Anne Arundel Cnty., Maryland , 137 F.3d 752, 763 (4th Cir. 1998) (finding that a shift of fire department officers const ituted a customarily recognized department or subdivision). 510 Phillips v. Fed. Cartridge Corp. , 69 F. Supp. 522, 526 (D. Minn. 1947) (finding that team of four engineers who specialized in designing gauges within larger engineering department was a recognized department and it s group leader qualified as exempt execut ive). See also Gorman v. Cont’l Can Co. , 1985 WL 5208, at *6 (N.D. Ill. Dec. 31, 1985) (cit ing Phillips for the proposit ion that the term “customarily recognized department” can include “small groups of employees working on a related project within a larger department”).