February 13, 2013: In Shabazz v. Burlington Coat Factory Warehouse Corp., et al., the Court’s opinion revealed the importance of clearly characterizing in deposition testimony the employee’s duties, the time spent performing each of those duties, as well as the relative importance of each task to the employer. In Shabazz, the employee, a “Customer Service Logistics Manager,” testified in her deposition that, among other tasks, she interviewed employees, made recommendations to her manager as to whether particular candidates should be hired, modified employees’ schedules and participated in employee evaluations alongside other management team members. However, despite being given the opportunity to describe the time spent on non-management tasks, the plaintiff never quantified how much of her time was allocated between managerial versus non-managerial tasks. She did testify, however, that she would abandon hourly work, such as running the cash register, to handle managerial tasks.
The Plaintiff’s Argument
The employer asserted in its motion for summary judgment that the plaintiff was an exempt executive employee. Along with her response to the employer’s motion, the plaintiff filed a declaration in which she attempted to illustrate that she “frequently” could not perform her managerial duties because she was often busy performing the same tasks as hourly employees. To that end, the plaintiff argued that performance of her managerial tasks was not her “primary duty,” and that she performed hourly tasks such as operating cash registers and unloading freight more than 50% of the time.
The Judge’s Opinion
In an opinion by Judge Forrester, the Court emphasized that its own recitation of the facts were pulled almost exclusively from the employee’s own deposition testimony, and that this testimony could not be later “improved” via the employee’s later-filed declaration. In its review of the factors enumerated in 29 C.F.R. § 541.700(a), the Court opined that while the “time-spent-on-exempt-work factor” is a useful guide in ascertaining whether the employee’s “primary duty” is management, the Regulations advise that time alone is not the sole test for making this determination. Indeed, the Court explained that the employee’s primary duty is the work performed that is of principal value to the employer, and that concurrent performance of exempt and nonexempt work is often performed in retail establishments. Notably, the employee stated during her deposition that, even when she worked on the floor or at the cash register, she “still had managerial responsibility.” Since the employee had testified that she would abandon hourly work to deal with managerial issues as they arose, the Court found that her performance of the management function was far more important to the employer than her performance of non-managerial, hourly work.
The Importance of Recording Time Spent on Particular Duties
This opinion hallmarks the importance of memorializing in the record the time spent by an employee on particular duties, as well as the relative importance of those duties to the employer. It also cautions plaintiffs’ practitioners to be prepared to address the “concurrent work argument” in cases wherein the employer asserts the plaintiff was an exempt executive employee. Specifically, if the employee is truly prevented from performing managerial functions because she is performing hourly tasks, this fact should be clearly demonstrated in the record.