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September 9, 1993

DANIEL S. FLEMING, et al., Plaintiffs,


The opinion of the court was delivered by: WILLIAM B. ENRIGHT


 Defendant, Carpenter/Contractors Cooperation Committee ("CCC"), is an employer subject to the provisions of the FLSA. Plaintiffs, Harris and Fleming, were employees within the meaning of the FLSA. Both plaintiffs were employed as field investigators. They each worked more than forty hours during certain workweeks for which they were not paid overtime compensation.

 Plaintiffs argue they are entitled to partial summary judgment because the undisputed facts establish that CCC has violated the overtime provisions of the FLSA. Defendant argues that plaintiffs are not entitled to summary judgment because there are factual disputes concerning whether plaintiffs hold an administrative position which exempts them from overtime pay. Plaintiffs argue that the undisputed facts establish that they did not hold administrative positions and, therefore, they are not exempt from the overtime pay requirements.


 A. Motion for Summary Judgment Standard

 Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment against a party which "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The party moving for summary judgment bears the burden of proving that there is no genuine issue of material fact and that judgment may be entered as a matter of law. Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987).

 "A party opposing a properly supported motion for summary judgment . . . 'must set forth specific facts showing that there is a genuine issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citing Fed. R. Civ. P. 56(e)) (footnotes omitted). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Id. at 255. Partial Summary Judgment may be granted pursuant to Fed. R. Civ. P. 56(d).

 B. Law on FLSA "Administrative Exemption"

 As a general rule, the remedial provisions of the FLSA are to be given a liberal interpretation and exemptions from them are to be narrowly construed. Kinney v. District of Columbia, 301 U.S. App. D.C. 279, 994 F.2d 6, 11 (D.C. Cir. 1993).

 However, the FLSA does exclude from its protection "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). The administrative exemption is an affirmative defense for which the defendant bears the burden of proof. See Service Employees Int'l Union, Local 102 v. County of San Diego, 784 F. Supp. 1503, 1509 (S.D. Cal. 1992); Abshire v. County of Kern, 908 F.2d 483, 485-86 (9th Cir. 1990). The employer must show that the employee fits plainly and unmistakably within (the exemption's) terms. Id.

 The administrative regulations promulgated pursuant to FLSA establish a "duties test" and a "salary test" for determining whether an employee is subject to the administrative exemption. Id. at 484 (citing 29 C.F.R. § 541.1(a-e); 29 C.F.R. 541.1(f). In order to qualify the employee for the exemption, an employer must prove that the employee meets both the duties and the salary tests. Ahern v. New York, 807 F. Supp. 919, 923 (N.D.N.Y. 1992). To prove that the employees pass these tests, the employer must prove that the employees for whom it claims the administrative exemption:

 i) primarily perform "office or non-manual work directly related to management policies or general business operations, of the employer;

 ii) customarily and regularly exercise discretion and independent judgment in performing those duties; and

 iii) were compensated on a salary or fee basis of not less than $ 250 per week. Id.

 Plaintiffs argue that they are entitled to summary judgment because the undisputed facts demonstrate that they fail both the "salary" and the "duties" tests, and are, therefore, not covered by the administrative exemption. Defendant argues that there are factual issues concerning whether plaintiffs were salaried employees and whether they performed the necessary administrative-type duties.


 A. Salary Test

 For an employee to be considered to be paid on a salary basis, the regulations provide that the employee receive a "predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of work performed." 29 C.F.R. § 541.118(a) (1). According to the regulations and case law, an employee is not paid on a salary basis if any of the following policies are present:

 1) An employee's compensation is based on an hourly rate; See SEIU, Local 102, 784 F. Supp. at 1510, 1511.

 2) An employee's absence for less than a day subjects the employee to a possible deduction from his pay or a possible reduction in accumulated sick leave or vacation time Id.;

 3) An employee is subject to disciplinary suspensions without pay for other than major safety violations. Id.

 4) An employee's "salary" is subject to deductions because of absences caused by jury duty, attendance as a witness, or temporary ...

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