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On-the-Job Discretion a Significant Factor in Exempting Employees from FLSA
An employer's first inquiry when faced with an employee's Fair Labor Standards Act ("FLSA") claim should be whether the employee is covered or exempt from FLSA regulation. An employer can establish the affirmative defense of FMLA exemption by showing that: (1) it pays the employee at least $250 per week on a salary or fee basis; (2) the employee's primary duty consists of office (or non-manual) work directly related to the employer's management policies or general business operations; and (3) the employee's primary duty requires him or her to exercise discretion and independent judgment.
In Renfro v. Ind. Mich. Power Co., No. 06-1935 (6th Cir. Jul. 18, 2007), the Sixth Circuit determined that technical writers who supported the employer's maintenance department by developing written procedures on how to maintain equipment were exempt from FLSA regulation. These writers had once been paid overtime as a bonus, but after the employer went through a restructuring and a shutdown, the employer stopped paying overtime, and the writers brought suit seeking overtime pay. The employer claimed that the writers were exempt from the FLSA, and a determination of this issue depended on whether the technical writers' primary duty—writing procedures—involved sufficient discretion and independent judgment to exempt them from the FLSA.
The Sixth Circuit held that the technical writers were not covered by the FLSA and its overtime requirements. The writers' primary duties involved creating new procedures, changing existing procedures as needed, and reviewing documents for their impact on established procedures. In these and other responsibilities, the Court found that the writers did not work under constant supervision, their assignments were not doled out step-by-step by their supervisors, and although the technical writing was subject to guidelines and procedures, the guidelines did not govern every aspect of how to develop procedures. |
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