The 4th Circuit Appeals Court recently tackled the question of whether assistants to high-level executives qualify for the administrative exemption from the Fair Labor Standards Act (FLSA). Its ruling turns less on the amount of time such assistants spend on certain tasks than on what the primary purpose of their jobs is.
What happened. “Alston” reported to the CEO of Federal Realty Investment Trust (FRIT), in Maryland, holding the job from the fall of 2003 through the spring of 2010. She maintained that she spent more than 50 percent of her time doing such tasks as coordinating the CEO’s travel arrangements, monitoring his e-mail and calls while he was away from the office, and helping him in his work with several professional organizations.
Alston asserted that (1) she routinely worked more than 40 hours a week at FRIT, (2) she spent 70 to 80 percent of her time performing personal work for the CEO and his family, and (3) she should be classified as nonexempt and paid overtime. So, she sued for violation of FLSA and the Maryland Wage and Hour Law. A judge in federal district court ruled that Alston fell within the administrative exemption, and she appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
What the court said. Alston further testified that she sometimes picked up the CEO’s children from school, helped him in his role as a Little League coach and chair of the local Cystic Fibrosis Foundation, planned his annual personal holiday party, scheduled medical appointments, and many other personal tasks. Furthermore, although there were between 10 and 14 other executive assistants among FRIT’s 400 employees, she was the only exempt assistant. They were paid up to $60,000 a year, while she earned more than $85,000 a year and received bonuses as high as $13,000.
Her performance evaluations did not help her case. The CEO said he depended on her integrity and good judgment in every aspect of his work. He said he gave her a broad scope of responsibilities and that she was a more complete business partner than he’d had in his 25-year career.
Appellate judges also found and that her “primary duty” included the exercise of discretion and independent judgment with respect to matters of significance. That, rather than the percentage of her time spent on various tasks, meant she was clearly exempt. Altemus v. FRIT, U.S. Court of Appeals for the 4th Circuit, No. 11-2213 (2012).
Point to remember: Alston’s salary clearly qualified her for exemption. Also, she had needed 5 to 10 years’ experience to qualify for the job, an indication it was an exempt position.