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. | 95 still be judged to have “particular weight” even if a higher level manager’s recommendations have more importance and even if the individual does not have authority to make the ultimate decision as to an employee’s change in status. 520 (5) Application of Executive Exemption to an Employee Who Performs Both Exempt and Non-Exempt Duties Two portions of the duties test for the executive exemption address not only the types of duties performed but also the frequency with which those duties are performed. Specifically, the test requires that an employee’s “primary duty” involve management and that the employee “customarily and regularly” direct the work of at least two other full-time employees. 521 These requirements raise issues where an employee performs both exempt and non-exempt duties. Concurrent performance of exempt and non-exempt duties does not disqualify an employee from the executive exemption if the necessary elements of the exemption are otherwise met. 522 However, employees with some supervisory responsibilities whose primary duties are the same as those of subordinates are unlikely to qualify as exempt executives. 523 Determining whether an employee who performs both exempt and non-exempt duties satisfies the duties test entails a fact- intensive case-by-case analysis, and employers should carefully review positions in which an exempt employee is performing non-exempt duties. 524 Generally, an exempt executive makes the decision regarding when to perform non-exempt duties and remains responsible for the success or failure of business operations under his or her management while performing the non-exempt work. 525 By comparison, a non-exempt employee generally is directed by a supervisor to perform the exempt work or performs the exempt work for defined time periods. 526 An employee whose primary duty is ordinary production work or routine, recurrent, or repetitive tasks cannot qualify for the executive exemption. 527 (a) Federal Regulations The federal regulations provide some specific guidance regarding when an employee performing non-exempt duties is likely to qualify as an executive employee. For example, the regulations specify that an assistant manager in a retail establishment may meet the requirements of the exemption even if he or she performs non-exempt work, such as serving customers, cooking food, 520 Id . 521 The definit ion of “primary duty” is discussed supra note 514. 522 29 C.F.R. § 541.106. 523 Id. 524 See, e.g., Pendlebury v. Starbucks Coffee Co. , 2008 WL 763213 (S.D. Fla. Mar. 13, 2008) (denying defendant ’s mot ion for summary judgment and holding that whether store managers’ primary dut ies were management or non-management was quest ion of fact for jury). 525 29 C.F.R. § 541.106(a). 526 Id . 527 Id .