The Tenth Circuit ruled on Wednesday in Maestas v. Day & Zimmerman LLC (pdf) that an employee’s “primary duty” — which is the relevant inquiry in determining whether an employee is exempt from the Fair Labor Standards Act — is a question of fact, not a question of law.  Although the ruling was a setback for the employer in the particular case, reversing the district court’s grant of summary judgment to the employer, in the bigger picture the decision may be more helpful than harmful to employers.

The four named plaintiffs in this FLSA collective action were part of a private security force at Los Alamos National Laboratory.  They contend that they were misclassified as exempt employees, because although they had some managerial functions, their primary duty was to act as “first responders.”  The employer moved for, and was granted, summary judgment in the district court.

The Tenth Circuit reversed, holding that the question of an employee’s “primary duty” is a question of fact, not of law, so that summary judgment was inappropriate unless there was no genuine dispute of fact about the plaintiffs’ duties.  Finding that there was such a dispute as to three of the four plaintiffs, the Court of Appeals reversed.

Although nominally a setback for the employer, in the long run the decision is more likely to be helpful to those opposing collective actions alleging misclassification.  The court emphasized that “there is no requirement that an exempt executive employee spend more than half her time on
managerial tasks,” and so less objective factors, such as the relative importance of the various duties, become paramount.  That is an inquiry often ill-suited to summary judgment, but it is also an inquiry that may be ill-suited to determination on a class basis.  Thus while the Tenth Circuit’s decision may be cited in the future by plaintiffs hoping to avoid summary judgment, it may see greater use by employers arguing that a misclassification case cannot be certified.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.