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

94 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP (3) Directing the Work of at Least Two or More Full-Time Employees The executive exemption requires that an individual customarily and regularly direct the work of at least two or more other full-time employees. As interpreted by the federal regulations, the phrase “two or more other employees” means two full-time employees or their equivalent. Thus, one full-time employee and two half-time employees or four half-time employees would equal two full-time employees. 511 In addition, supervision of a department or other group can be distributed among two, three, or more managers, but each such manager must customarily and regularly direct the work of two or more other full-time employees or the equivalent. 512 For example, a department with five full-time non-exempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers. 513 An employee who “merely assists the manager of a particular department and supervises two or more employees only in the actual manager’s absence does not meet this requirement.” 514 In addition, hours worked by a non-exempt employee “cannot be credited more than once for different executives.” Therefore, a “shared responsibility for the supervision of the same two employees in the same department does not satisfy this requirement.” 515 (4) Authority Necessary to Qualify as an Executive To qualify for the executive exemption, an individual must have the authority to hire or fire other employees, or the individual’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status must be given particular weight. 516 The individual need not possess absolute authority to make decisions regarding an employee’s status, so long as his or her opinions regarding such decisions are given “particular weight.” 517 Factors to consider when determining whether an individual’s recommendations are given “particular weight” include but are not limited to whether it is part of the individual’s job duties to make such recommendations and the frequency with which such recommendations are made, requested, and relied upon. 518 Generally, an executive’s recommendations must pertain to employees whom the executive customarily and regularly directs. In addition, occasional suggestions regarding these decisions are not sufficient to justify the exemption. 519 However, an individual’s recommendations may 511 29 C.F.R. § 541.104(a); DOL Wage & Hour Fact Sheet #17B (July 2008). 512 29 C.F.R. § 541.104(b); DOL Wage & Hour Fact Sheet #17B (July 2008). 513 Id. 514 29 C.F.R. § 541.104(c). 515 29 C.F.R. § 541.104(d). 516 29 C.F.R. § 541.100(4). 517 29 C.F.R. § 541.105. 518 29 C.F.R. § 541.105; DOL Wage & Hour Fact Sheet #17B (July 2008). See also Marchant v. Sands Taylor & Wood Co. , 75 F. Supp. 783, 786 (D. Mass. 1948). 519 29 C.F.R. § 541.105.