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

96 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP stocking shelves, and cleaning the establishment, as long as the assistant manager’s primary duty is management. 528 The regulations specifically note that an assistant manager can simultaneously supervise employees and serve customers, or direct the work of other employees and stock shelves. 529 The regulations governing the executive exemption also provide examples of circumstances in which employees who perform both exempt and non-exempt duties do not meet the exemption requirements. For instance, a working supervisor whose primary duty is performing non-exempt work on a production line in a manufacturing plant is not exempt merely because the employee occasionally has some responsibility for directing the work of other non-exempt production line employees, when perhaps the exempt supervisor is unavailable. 530 Similarly, an employee whose primary duty is to work as an electrician is not an exempt executive even if the employee directs the work of other employees on the job site, orders parts and materials, and handles requests from the prime contractor. 531 (b) Case Law Many courts have determined that an employee’s primary duty is management despite the fact that the employee concurrently performs non-exempt duties. 532 For example, in Donovan v. Burger King Corporation , the First Circuit held that assistant managers in forty-four Burger King fast food restaurants were exempt executives even though they spent approximately 40 percent of their time performing such tasks as preparing food and taking orders because performance of that type of non-exempt work “does not negate the conclusion that the employee’s primary duty is management.” 533 The court found that these employees were truly “in charge” of the restaurants during their shifts and therefore met the primary duties test for the exemption. 534 528 29 C.F.R. § 541.106(b). 529 Id . 530 29 C.F.R. § 541.106(c). 531 Id. 532 See , e.g. , Donovan v. Burger King Corp. , 672 F.2d 221, 226 (1st Cir. 1982). 533 Id . 534 Id. Similarly, some court s have found that store managers at various types of retail establishment s who spent as much as 90 percent of their t ime on non-management jobs, such as pumping gas, wait ing on customers, and stocking shelves, were exempt because they simultaneously were responsible for management funct ions, such as hiring, firing, and supervising other employees; dealing with vendors; and ensuring proper account ing of inventory and cash. See Jones v. Virginia Oil Co. , 69 F. App’x 633, 2003 WL 21699882 (4thCir. July 23, 2003) (findingmanager of combinat ion convenience store and fast food restaurant exempt despite spending 75-80 percent of her t ime on “basic line-worker tasks” because she simultaneously supervised employees, handled customer complaint s, and dealt with vendors); Murray v. Stuckey’s, Inc. , 939 F.2d 614 (8th Cir. 1991) (findingmanagers for chain of gas stat ions, convenience stores, and restaurant s who spent 65-90 percent of their t ime serving customers and performing other non-exempt tasks had a primary duty of “management” because they were “ in charge” of their stores); Langley v. Gymboree Operations, Inc. , 530 F. Supp. 2d 1297 (S.D. Fla. 2008) (finding store manager for children’s clothing store exempt ); Posely v. Eckerd Corp. , 433 F. Supp. 2d 1287 (S.D. Fla. 2006) (finding store manager for pharmacy exempt ); Jackson v. Advance Auto Parts, Inc. , 362 F. Supp. 2d 1323 (N.D. Ga. 2005) (finding store manager for auto part s store exempt ); but see Morgan , 551 F.3d at 1269 (store managers non-exempt because “ the overwhelming evidence at t rial showed Plaint iff store managers spent 80 to 90 percent of their t ime performing non-exempt, manual labor”).