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An Employee Who Sweeps Floors Can Also Be An Executive Under the FLSA


In the recent Sixth Circuit case of Thomas v. Speedway SuperAmerica., 6th Cir., No. 06-3768, 10/30/07, the Court found that a gas station and convenience store manager was a bona fide executive exempt from overtime pay under the Fair Labor Standards Act ("FLSA") and the Ohio Wage and Hour Act even though she performed non-management tasks and was closely supervised. The Plaintiff, Mabel Kay Thomas (Thomas), began working as a store manager for Speedway in 1998. She was supervised by a district manager who visited the station once or twice a week. Thomas claimed that approximately sixty percent of her work time was spent on non-managerial tasks, such as stocking shelves, sweeping floors, cleaning bathrooms, operating the register, and performing clerical duties. Thomas, however, also performed many management functions, including hiring and supervising employees, preparing work schedules, handling employee complaints, evaluating employees’ work performance, and handling terminations. In 2003, Thomas was terminated and she filed a lawsuit in federal district court alleging that the Company had violated the FLSA and Ohio wage laws. The Company, in turn, argued that Thomas fell under the executive exemption of the FLSA and state wage laws. The district court granted summary judgment to the Company and the Sixth Circuit affirmed.


The Sixth Circuit reiterated its prior holding that the test of whether an employee’s duties are primarily managerial is not whether they are “in charge.” In this case, however, the Court found that being “in charge” did equate to being in management. The Court held that Thomas met the criteria for the executive exemption. First, Thomas’s managerial duties were much more important to the station’s success than her non-managerial duties. Second, on a daily basis, Thomas exercised discretion over matters that were vital to the station’s success. Third, Thomas was relatively free from supervision Last, Thomas earned approximately thirty percent more than other employees, which indicated that management was her primary duty. All of these factors, the Court held, supported the Company’s position that Thomas qualified for the executive exemption under both FLSA and state wage laws.


This case emphasizes that courts will look at an employee’s actual duties in determining whether they qualify for the executive exemption. Employers, therefore, should have procedures and policies that demonstrate that managers have the primary duties of management and that these duties are essential to the business—that they, for instance, exercise authority over employees, have discretion in decisions, and are relatively autonomous. For additional information, you are welcome to contact the Greenebaum attorneys who represented the Company in this matter or view the full opinion of the Sixth Circuit, which is published on line.

For more information please contact a member of Greenebaum's Labor and Employment Team. Click here for a complete roster.



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