Exempt or non exempt boils down to simple facts www.privateofficer.com
Were Security Guards Exempt or Nonexempt?
Four New Mexico security guards, all classified as executives exempt from coverage under the Fair Labor Standards Act (FLSA) sued, challenging their classification. They have a mix of managerial and nonmanagerial duties, and sorting out their proper classification isn’t easy. No surprise—all wanted overtime pay.
The guards work for Day & Zimmerman and SOC, contractors that provide security at Los Alamos National Laboratory. They are organized in a hierarchical, military-style structure, with supervisors carrying such ranks as major, captain, and lieutenant. The lowest-level guards are unionized, nonexempt, and wear uniforms.
Field supervisors also wear uniforms and must maintain the same certifications as the lowest level, including training as first responders, on respirators, and on hazardous materials. But they also need some supervisory experience and training in leadership, management, and administration.
A judge in federal district court granted SOC’s request for summary judgment, thus rejecting the field supervisors’ claims of misclassification. They appealed to the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
What the court said. Appellate judges reviewed the duties of the supervisor with the rank of major, finding that he led the daily briefing of subordinate officers, spent about 3 hours a day distributing and collecting weapons from subordinate officers, and spent the bulk of his time in headquarters, supervising the entire shift. Judges ruled that “it is clear that his management duties are primary,” and agreed with the district judge that he deserves the executive exemption.
Regarding the other three plaintiffs, however, they said, “Because the primary duty determination is a factual one, summary judgment is appropriate only if all reasonable factfinders would conclude that the managerial portions of plaintiffs’ jobs are their ‘primary duties.’” And, that was not the case, in judges’ view.
For example, the lieutenant ensures daily that all posts are staffed properly and fills in if one is empty. He visually inspects and assesses subordinate officers. He must also respond to any alarm. Are those his primary duties, and are they managerial? Judges directed the district court to carefully explore and answer those questions about each of the other three plaintiffs. Maestas et al. v. Day & Zimmerman and SOC, U.S. Court of Appeals for the 10th Circuit, No. 10-2280 (2012).
Point to remember: For proper classification, judges stressed, questions often cannot be answered based only on FLSA language. Instead, each worker’s duties must be analyzed.