Recent Wage & Hour News
- Undocumented Workers Can Seek Unpaid Wages Even if They Presented Fraudulent Documents to Obtain Employment
- Employer Pays $485,990 in Back Wages to Security Guards
- Wal-Mart Workers to Receive More Than $33 Million in Back Wages
- Parent Corporation Was "Joint Employer" Liable For Damages Owed Employees Under FLSA
- Company Pleads Guilty to Willful Overtime Pay and Recordkeeping Violations
- Puerto Rico Security Guard Company Enforcement Initiative Recovers Almost $1.3 Million in Back Wages
- DOL Sues to Recover Nearly Two Million Dollars in Overtime Back Wages
- Wal-Mart Employees Seek More Damages
- Employee Was Not "Engaged In Interstate Commerce" When Performing His Job Duties and Therefore Not Covered By FLSA
- Time Spent By Federal Law Enforcement Officials Driving To and From Work in Government-Issued Vehicles Was Not Compensable
- Wage & Hour Collects $172 Million in Back Wages for over 246,000 Employees in 2006 - DOL
- U.S. DOL and Consulate General of Mexico Sign Partnership Agreement to Provide Labor Law Compliance Assistance
Undocumented Workers Can Seek Unpaid Wages Even if They Presented Fraudulent Documents to Obtain Employment (1/10/07) - NY Sup Ct
A New York trial court has held, as a matter of first impression, that undocumented workers may file an action for unpaid wages under the New York Labor Law for work they have already performed, even if they allegedly proffered fraudulent documents to obtain employment.
Pineda v. Kel-Tech Const., Inc.
Employer Pays $485,990 in Back Wages to Security Guards (1/29/07) - DOL
Management and Training Corp., headquartered in Centerville, Utah, has paid $485,990 in back wages to 262 current and former security guards in Raymondville, Texas, after an investigation by the U.S. Department of Labor's Wage and Hour Division found the employees had not been properly paid, as required under the McNamara-O'Hara Service Contract Act (SCA).
"All employees are entitled to be paid the wages they have rightfully earned," said Cynthia Watson, Wage and Hour regional administrator for the Southwest. "The employer failed to pay proper overtime when employees worked beyond their schedules and also failed to pay the correct fringe benefits."
An investigation by the Wage and Hour Division, covering the two-year period Oct. 1, 2003 to Sept. 30, 2005, determined that Management and Training Corp. failed to pay the correct fringe benefits and failed to pay for meal breaks when employees worked beyond their schedule due to briefings. These additional hours resulted in the non-payment of proper overtime. The company's contract, with the U.S. Marshals Service to provide security guards, is subject to the prevailing wage provisions of the SCA and the overtime requirements of the Contract Work Hours and Safety Standards Act (CWHSSA).
Under the SCA, contractors and subcontractors performing on federal services contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality. The CWHSSA requires the payment of time-and-one-half the basic rate of pay for all hours worked more than 40 in a workweek. Contractors must ensure that their subcontractors are fully informed of the requirements under federal government contract labor laws. Contractors that fail to properly compensate their workers are subject to federal withholding contract clauses that allow the government to withhold contract payments until all workers are paid the prevailing wages and fringe benefits.
The company has agreed to future compliance and has paid the back wages in full.
The Wage and Hour Division concluded 31,987 compliance actions in fiscal year 2006 and recovered more than $171 million in back wages for more than 246,000 employees. Back-wage collections last year represent a 30 percent increase over back wages collected in fiscal year 2001. The number of workers receiving back wages has increased by 14 percent since year 2001.
Wal-Mart Workers to Receive More Than $33 Million in Back Wages (1/25/07) - DOL
The U.S. Department of Labor has announced that Wal-Mart Stores Inc. will pay over $33 million in back wages to resolve issues that arose under the Fair Labor Standards Act (FLSA) concerning how the company computed overtime pay. The agreement covers 86,680 employees who worked for the company from Feb. 1, 2002 to Jan. 19, 2007.
"This settlement provides $33 million in back wages, plus interest, to Wal-Mart workers, and the company has taken corrective action to prevent this from happening again," said Assistant Secretary of Labor for Employment Standards Victoria A. Lipnic.
To finalize the agreement, the Labor Department filed a complaint today in the U.S. District Court for the Western District of Arkansas, Ft. Smith Division, against Wal-Mart Stores Inc. alleging violations of the FLSA overtime provisions. A consent judgment ordering the company to pay back wages and enjoining it from further violations was filed at the same time. The consent judgment was approved by the court this morning.
Wal-Mart brought this matter to the attention of the Department of Labor after an internal audit raised concerns regarding overtime computations. The issues involve how Wal-Mart treated incentives and other premium payments in the calculation of employees' overtime pay. The agreement also addresses payment of overtime to certain non-exempt salaried interns, manager trainees, and programmer trainees.
Under the terms of the consent judgment, Wal-Mart has agreed to pay all back wages the Labor Department has determined are owed for violations identified in the consent judgment to present and former employees, and to pay pre- and post-judgment interest. The company has also agreed to set up a Web site (www.dol.settlement.wal-mart.com) and to staff a toll-free telephone number, (888) 262-1559 or TTY (800) 318-7442, to answer questions regarding the back wages. A third-party administrator will disburse the payments to the affected employees. The agreement resolves only those violations identified in the consent judgment. It does not affect ongoing private litigation or workers' ability to file complaints with the Labor Department.
Headquartered in Bentonville, Ark., Wal-Mart operates more than 3,900 establishments in the U.S. Back wage payments will go to current and former employees of the company's retail divisions in the U.S. and Puerto Rico, including Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets, and Sam's Club warehouses.
For more information about federal overtime laws, call the U.S. Department of Labor's toll-free help line (866) 4US-WAGE (487-9243). Information on the overtime requirements is also available on the Internet at www.wagehour.dol.gov.
Parent Corporation Was "Joint Employer" Liable For Damages Owed Employees Under FLSA (11/30/06) US Dist Ct., N.D.Okla.
In a case of apparent first impression in the Tenth Circuit, an Oklahoma federal district court has ruled that a parent corporation was a "joint employer" with its subsidiary for purposes of overtime liability under the Fair Labor Standards Act ("FLSA"). There was specific evidence the parent corporation's employees made or assisted in making all the FLSA decisions that were at issue. The companies were joint employers under the relevant regulations, and considering all economic realities.
Zachary v. Rescare Oklahoma, Inc.
Company Pleads Guilty to Willful Overtime Pay and Recordkeeping Violations (1/22/07) - DOL
SALT LAKE CITY -- A co-owner of Construction Associates Inc., doing business as KRT Drywall, Logan, Utah, has pleaded guilty to criminal misdemeanor charges for repeated and willful violations of the overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA), the U.S. Department of Labor's Wage and Hour Division announced today.
Federal Magistrate Judge Brooke Wells imposed a sentence Jan. 10 on Dennis Kim Pitcher, co-owner of the construction company, which includes 60 months of probation, a $3,000 fine, 300 hours of community service and restitution of $152,597 in back wages to 134 employees. Pitcher also was ordered to comply with all local, state and federal laws including the FLSA.
"The Department of Labor is committed to enforcing the law to ensure that employees receive the wages they have earned and employers who conceal information, lie to investigators and falsify records are dealt with appropriately," said Dean A. Campbell, the Wage and Hour Division's district director in Salt Lake City.
Construction Associates Inc. was sentenced to 60 months probation and was ordered to pay a $10,000 fine, to comply with all rules applicable to companies obtaining business licenses in Utah, and to pay back wages due to employees jointly with Mr. Pitcher. The company's former bookkeeper, Ludean Parkin, was sentenced to 24 months probation, ordered to pay a $1,000 fine and serve 150 hours of community service after pleading guilty to violations of the of recordkeeping provisions of the FLSA.
The criminal action against the defendants ended a five-year Wage Hour Division compliance action. The case was presented to the U.S. Attorney's office for prosecution alleging the defendants made numerous false statements and provided falsified records indicating that employees were paid overtime back wages when in fact they were not.
For more information about the FLSA and other laws administered by the Wage and Hour Division, call the U.S. Department of Labor's toll-free help line at 1 (866) 4US-WAGE (487-9243), or contact the Wage and Hour Division's district office in Salt Lake City at (801) 524-5706. Information also is available on the Internet at www.wagehour.dol.gov.
Puerto Rico Security Guard Company Enforcement Initiative Recovers Almost $1.3 Million in Back Wages (2/1/07) - DOL
A comprehensive enforcement initiative by the U.S. Labor Department's Wage and Hour Division targeting the security guard industry in Puerto Rico has resulted in the recovery of almost $1.3 million in back wages on behalf of almost 5,000 workers over the past three years.
According to David R. Heffelfinger, district director for the Wage and Hour Division in Guaynabo, his office investigated 181 security guard companies for possible violations of the federal Fair Labor Standards Act (FLSA) between Jan. 1, 2004 and Dec. 31, 2006. The FLSA requires that employees be paid at least the applicable minimum wage and time and one-half their regular rate of pay for hours worked over 40 per week. Employers also must maintain accurate records of employees' wages, hours and conditions of employment.
Heffelfinger noted that most of the workers involved in these cases are security guards being paid the minimum wage. Most violations resulted because the companies often require employees to work overtime but do not properly pay them for overtime hours. "Security guard companies in Puerto Rico have a chronic history of requiring employees to work over 40 hours per week and then paying them straight time for all hours worked," he said. "The FLSA clearly requires the payment of time and one-half for all hours worked over 40 in a single work week."
During the three-year period, the Wage and Hour Division investigated 181 security guard companies across Puerto Rico. A total of 139 employers were found in violation of the FLSA. So far, 112 of those employers have paid a total of $1,287,044 -- primarily in overtime back wages -- to 4,995 workers. Seventeen of these employers were also assessed at total of $440,967 in civil money penalties payable to the U.S. Department of Labor. According to Heffelfinger, three investigations resulted in lawsuits in which the Labor Department obtained judgments of the court ordering the employers to pay more than $296,677 to 222 employees.
"We hope that this enforcement initiative has been a wake up call for security firms all across the Commonwealth," said Heffelfinger. "We know that they are violating the law and we will not hesitate to pursue them and compel them to pay their employees properly for all hours worked. It's a matter of both legal obligation and simple fairness."
The investigations were conducted by the Puerto Rico District Office of the Labor Department's Wage and Hour Division. Information on the requirements of the FLSA may be obtained by calling that office at (787) 775-1947 or the U.S. Labor Department's toll-free help line at 1 (866) 4US-WAGE (487-9243). Information is also available on the Internet at www.wagehour.dol.gov.
DOL Sues to Recover Nearly Two Million Dollars in Overtime Back Wages (12/19/06) - DOL
The U.S. Department of Labor has sued Rife Industrial Marine for alleged violations of the overtime and recordkeeping provisions of the federal Fair Labor Standards Act (FLSA), after an investigation by the department's Wage and Hour Division found that welders working offshore had been improperly classified as independent contractors.
Back wages are expected to total almost $2 million. The complaint was filed in the U.S. District Court for the Eastern District of Texas, Beaumont Division against Rife Industrial Marine Inc. and Rodney Rife, president of the company.
"Among this department's highest priorities is ensuring that workers are paid all the wages they have earned," said Secretary of Labor Elaine L. Chao. "This legal action on behalf of these workers involves about $2 million they are owed in back wages and puts their employer on notice that they should carefully comply with the federal overtime law in the future."
The Wage and Hour Division's investigation found that the company considered welders who were working offshore to be independent contractors when in fact there was an employment relationship, making these workers eligible for overtime compensation. Additionally, the company failed to properly pay overtime to its regular employees or to maintain accurate records of employees' wages and hours of work.
The FLSA requires that covered employees be paid at one and one-half times their regular rate of pay for hours worked more than 40 per week. The law also requires that accurate records of employees' wages, hours and other conditions of employment be maintained. For purposes of the FLSA, there are a number of factors for determining whether an individual is an independent contractor or an employee. In this case, the Wage and Hour Division found that company's workers did not meet the legal factors for independent contractor status.
Wal-Mart Employees Seek More Damages (1/3/07) - FindLaw
Wal-Mart workers in Pennsylvania who won a $78.5 million judgment for working off the clock and through rest breaks returned to court to seek another $72 million in damages and interest.
Read the article. (Beginning in 2007 FindLaw requires all users to register. Registration is free. If you have not yet registered, you will be prompted to do so before viewing the case accessible via this link.)
Employee Was Not "Engaged In Interstate Commerce" When Performing His Job Duties and Therefore Not Covered By FLSA (1/4/07) - 5th Cir.
Gregorio Chavez Sobrinio brought this suit against his former employer, Medical Center Visitor's Lodge ("MCVL"), complaining that he was paid below the minimum wage and was not properly compensated for overtime, in violation of the Fair Labor Standards Act ("FLSA").
The threshold question in the case was whether Sobrinio was covered by the FLSA through his employment with MCVL. Sobrinio argued that he was entitled to the FLSA's protections because he was "engaged in interstate commerce" when performing his job duties. The district court disagreed and granted MCVL's motion for summary judgment, finding that Sobrinio was not covered by the FLSA. On appeal, the 5th Circuit affirmed:
Sobrinio was a full-time employee of MCVL. MCVL is an 18-room motel that houses patients (and their families) seeking treatment at the Texas Medical Center in Houston. Sobrinio provided a variety of services. He acted as a janitor, security guard and a driver for the motel's guests, who were often from out of town. Importantly, Sobrinio only drove the guests to and from the Texas Medical Center and nearby stores; he did not drive them to or from any airport or other interstate transportation center.
To determine whether these activities amount to Sobrinio being personally engaged in interstate commerce, we apply a practical test. "The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity." There is no de minimis requirement. "Any regular contact with commerce, no matter how small, will result in coverage."
Given the facts that Sobrinio alleges, we agree with the district court that his activities are purely local in nature and fall outside the FLSA's protections. Sobrinio draws attention to his activity transporting out-of-state patrons, pointing to cases finding that transporters are covered by the FLSA. See, e.g., Marshall, 603 F.2d 1122 (bus operators that transport passengers to international transportation points covered); Airlines, 198 F.2d 249 (limousine drivers contracted exclusively to take passengers to and from airport covered).
But Sobrinio relies on cases, unlike his, that involve employees transporting travelers to and from interstate and international transportation points. Those cases might control if Sobrinio transported motel patrons to and from the airport in Houston, for instance, but he makes no such allegation.
This Court has found employees engaged in commerce when "their work was entwined with a continuous stream of interstate travel." Sobrinio's driving activities cannot be viewed as part of a constant stream of interstate travel, since his passengers were not in the midst of such travel. Their interstate travel terminated when they first reached the MCVL and did not start again until they ultimately departed.
That many of the motel guests were out-of-state does not alter the local quality of Sobrinio's work. His activities took place outside the stream of travel, after MCVL guests arrived from out-of-state and before they began their departure journeys. His job description amounts to nothing more than providing local transportation for motel patrons.
Sobrinio fails to satisfy his burden of showing that he was engaged in interstate commerce, and he therefore is not entitled to the FLSA's protections based on the facts alleged.
Sobrinio v. Medical Center Visitor's Lodge
The 5th Circuit Court of Appeals' jurisdiction includes Louisiana, Texas and Mississippi.
Time Spent By Federal Law Enforcement Officials Driving To and From Work in Government-Issued Vehicles Was Not Compensable (12/18/06) - Fed Cir.
The plaintiffs in this case are several thousand federal law enforcement officers who seek compensation from the government for the time they spend commuting to and from work in government-owned police vehicles. The plaintiffs are issued government-owned police vehicles and required as a condition of their employment to commute from home to work in those vehicles. This requirement facilitates their employers' law enforcement missions, since the cars will be available to the officers for rapid response to emergency calls at any time, whether the officers are at home or proceeding on their commutes. The officers' time is not entirely their own during their commutes: they are required to have their weapons and other law enforcement-related equipment and to have on and monitor their vehicles' communication equipment. They are not allowed to run any personal errands in their government vehicles, so their commute must proceed directly from home to work and back again without unauthorized detours or stops.
The plaintiffs' suit alleged that the time they spent commuting was compensable under the Fair Labor Standards Act ("FLSA"). The United States Court of Federal Claims issued summary judgment in favor of the government, holding that the driving time was not compensable under the FLSA, as amended by the Portal-to-Portal Act. The Federal Circuit Court of Appeals affirmed.
Adams v. US
The jurisdiction of the Federal Circuit Court of Appeals includes Claims Court and Veteran's appeals.
Wage & Hour Collects $172 Million in Back Wages for over 246,000 Employees in 2006 - DOL
The Employment Standards Administration's Wage and Hour Division (WHD) recovered more than $171.5 million in back wages for over 246,000 employees in fiscal year 2006. Back wage collections represent a 3.6 percent increase over back wages collected in fiscal year 2005. The number of workers who received back wages in fiscal year 2006 increased by 2.3 percent over the number receiving back wages in fiscal year 2005. The agency concluded 31,987 compliance actions and assessed nearly $7.9 million in civil money penalties.
Over 222,000 Employees Received Fair Labor Standards Act Back Wages
In fiscal year 2006, more than 222,000 employees received a total of $135.7 million in minimum wage and overtime back wages as a result of Fair Labor Standards Act (FLSA) violations. WHD collected over $120.5 million in back wages for FLSA overtime violations and more than $15.2 million for FLSA minimum wage violations. Back wages for overtime violations represented roughly 89 percent of all FLSA back wages collected, and the number of employees due overtime back wages represented about 87 percent of all employees due FLSA back wages. WHD assessed employers $2.9 million in FLSA civil money penalties.
Compliance with the Part 541 Overtime Security Regulations
Of the $135.7 million in FLSA back wages collected, over $13.2 million were collected for approximately 12,000 employees for violations of the revised Overtime Security regulations (29 C.F.R. Part 541). This compares to $13.6 million collected for approximately 10,000 employees in fiscal year 2005. The violation most frequently cited was one in which the employee's primary duty was not "the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers." This violation of the administrative duty test was cited in 353 cases and affected approximately 2,800 employees.
Back Wages collected for workers in Low-wage Industries Increased
WHD continues to pursue compliance in low-wage industries that employ young and immigrant workers. In fiscal year 2006, the agency collected nearly $50.6 million in back wages for approximately 86,700 workers in low-wage industries - an increase of over 10 percent of back wages collected in the same low-wage industries during the previous fiscal year. Over a third of WHD enforcement resources are attributed to investigations in nine low-wage industries, which include day care, restaurants, janitorial services, and temporary help.
Low-wage Workers in the Gulf Coast Receive over $1.2 Million in Back Wages
In fiscal year 2006, WHD opened over 300 hurricane-related cases, which resulted in the recovery of more than $1.3 million in back wages for 2,699 employees. WHD has also collected an additional $760,000 in back wages on cases not yet concluded. WHD's enforcement activities in the Gulf Coast region included investigations of contractors and their subcontractors primarily working on debris removal contracts subject to the federal McNamara-O'Hara Service Contract Act (SCA). In addition, in New Orleans, WHD investigated contractors working on U.S. Army Corps of Engineers contracts to place blue tarps over the rooftops of damaged homes. In Gulfport, Mississippi, WHD investigated the reconstruction efforts of the casinos located along the Mississippi shore.
Outreach to the worker community and to federal contracting agencies complemented WHD's enforcement in the region. Throughout the prior fiscal year, WHD joined with faith-based organizations, community activists, the federal contracting community, foreign consulates, and local media to provide outreach and education about the laws it enforces to employers and employees of the Gulf Coast region.
The circumstances encountered in the aftermath of Hurricanes Katrina and Rita provided unique challenges to WHD's ability to respond to the changing working conditions and to secure the rights of workers in the Gulf Coast region. WHD's immediate actions following the hurricanes were geared toward advising the public of federal wage and hour laws and assisting workers who had not received their last paycheck.
Following Hurricane Katrina's landfall, WHD offices in New Orleans, Louisiana, and Biloxi, Mississippi, were damaged and closed. Once temporary offices were opened, WHD sent five additional bilingual investigators to support the agency's compliance assistance and enforcement activities. In January 2006, WHD began rotating up to ten additional bilingual (English/Spanish and English/Portuguese) investigators and managers from other offices around the country to supplement the activities of the full-time WHD staff members who report to the Gulf Coast offices.
Number of Minors Employed in Compliance with Child Labor Laws
Results for fiscal year 2006 show a total of 3,723 minors found illegally employed, an average of 3.4 minors illegally employed per investigation. The majority of child labor violations occurred when workers under the age of 16 worked too many hours, too late at night, or too early in the morning. In total, 2,356 minors were employed in violation of the child labor hours standards. Hazardous Occupation Order (HO) violations were found in a third of the cases with child labor violations. Violations of HO No. 12 (paper balers) were the most common type of HO violation found followed by violations of HO No. 10 (meat slicers), and HO No. 2 (driving). WHD assessed nearly $3 million in child labor civil money penalties in fiscal year 2006.
Family and Medical Leave Act Enforcement
The number of Family and Medical Leave Act (FMLA) complaint investigations concluded in fiscal year 2006 declined slightly from investigations concluded in fiscal year 2005. The number of violation cases declined by 19 percent from the number in fiscal year 2005, and over 26 percent fewer employees were affected by FMLA violations. Termination of employees seeking FMLA leave continues to be the primary reason that employees filed a complaint.
Fiscal Year 2007 Initiatives
The long-term reconstruction of the Gulf Coast region will necessitate a strong and continuing WHD presence for the foreseeable future. Throughout the next several years, WHD will continue to allocate enforcement resources to the region, explore new strategies and partnerships to reach vulnerable workers, and pursue all opportunities to meet any new compliance challenges that may arise along the U.S. Gulf Coast.
In addition to this effort, WHD regions have planned regional and local initiatives for fiscal year 2007. The initiatives utilized the strategies of compliance assistance, partnerships and alliances, and enforcement to increase compliance with the FLSA, including youth employment, in low-wage industries. A component of the agency's low-wage focus will include regional and district initiatives in agriculture to increase compliance with the Migrant and Seasonal Agricultural Worker Protection Act.
U.S. DOL and Consulate General of Mexico Sign Partnership Agreement to Provide Labor Law Compliance Assistance (12/14/06) - DOL
NEW YORK -- The U.S. Department of Labor's Wage and Hour Division (WHD) and the Consulate General of Mexico in New York City have signed an agreement under which they will combine resources to educate and inform Mexican employees about labor law protections in the United States.
A signing ceremony was held today at the consulate. The alliance is entitled TEACH (Trabajadores Edifican Alianza en la Communidad Hispana) or "Workers Building Outreach in the Spanish Speaking Community."
"We welcome this opportunity to join with the Consulate General of Mexico," said Corlis Sellers, regional administrator for the Wage and Hour Division's Northeast region. "Through our collaborative efforts, we hope to educate workers on their rights and assure them that they are fully protected under the statutes enforced by the Wage and Hour Division."
Sellers noted that those laws include the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and the Family and Medical Leave Act (FMLA), among others.
Under the partnership agreement, the parties will: build and maintain a long term relationship of cooperation to assure workers' rights are protected to the fullest extent possible; jointly participate in events aimed at educating Mexican nationals regarding their rights under the law; and distribute Spanish-language educational and compliance assistance materials to workers and employers in low wage industries that typically employ large numbers of minorities, including Hispanic immigrant workers. The consulate will act as a liaison between Mexican citizens and the WHD to report allegations of wage and hour violations, to assist in locating workers, and to assist in distributing back wages.
According to Philip Jacobson, district director for the WHD district office in New York City, an important part of this effort is a TEACH hotline in his office that Spanish-speaking workers can call for assistance from the WHD. The hotline number is (718) 254-9416. Workers can also obtain assistance by calling the Wage and Hour Division, toll-free, at 1 (866) 4US-WAGE (487-9243).
"It's important that everyone understand that all workers are entitled to protection under the laws we enforce, regardless of immigration status," said Jacobson. "When we enforce the rights of the most vulnerable workers, all workers and businesses are protected from unfair competition by unscrupulous employers."
Employer Was Not Entitled To Summary Judgment in FLSA Overtime Action on Basis of Executive or Administrative Exemption (9/28/06) - U.S. Dist Ct., S.D. Texas
In this case, a U.S. District Court held that a Texas chain of retail pawn and short-term or "payday" loan businesses was not entitled to summary judgment on an Assistant Store Manager's (ASM's) overtime claims under the Fair Labor Standards Act ("FLSA"). Under the former "short test" for the executive exemption, genuine issues of material fact existed as to whether the primary duties of an ASM consisted of management of the enterprise in which he was employed or a customarily recognized department or subdivision thereof. Fact issues as to whether he performed work requiring the exercise of discretion and independent judgment and the extent to which that discretion and judgment was exercised with respect to matters of significance precluded summary judgment under the former "short test" for the administrative exemption. A fact issue also existed as to whether he qualified under the FLSA long tests for the executive and administrative exemptions such that he could qualify under the "combination exemption."
Reyes v. Texas Ezpawn, L.P.
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