The subject of many FLSA actions is store managers and whether they are properly classified as exempt employees. In a recent victory for the employer community, Judge Glenn Suddaby of the Northern District of New York held as a matter of law that Express Mart properly classified its store manager in Cato, New York as exempt. Guinup v. Petr-All Petroleum Corp., 2010 U.S. Dist. LEXIS 86280 (N.D.N.Y Aug. 23, 2010).
Plaintiff Guinup was the store manager for Store 360, a combination convenience store and gas station. In her claim for overtime, she did not dispute that three of the four requirements for the executive exemption were met: namely, that she; 1) was paid on a salary basis and earned at least $455 per week; 2) customarily and regularly directed the work of two or more employees; and 3) had the authority to hire or fire employee or in the alternative make recommendations as to hiring and firing which received particular weight. Id. at * 17-18. Rather, Plaintiff argued that as a store manager she did not meet the requirement that her “primary duty [be] management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof.” Id. citing 29 C.F.R. § 541.100.
The Court then reviewed the four factors utilized to determine whether an employee’s primary duty is management: “ the relative importance of the exempt duties as compared with other types of duties;  the amount of time spent performing exempt work;  the employee’s relative freedom from direct supervision; and  the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” Id. In holding that each factor militated in favor of exempt status the Court observed that Plaintiff’s duties included:
interviewing and hiring new employees, scheduling, training, writing performance evaluations, reporting employee and customer injuries to corporate, discussing sales performance and promotions with corporate, conducting surveys of competitors’ gas prices and convenience store business, and controlling "shrink." Plaintiff was also responsible for making recommendations to corporate regarding product ordering and pricing, new hire pay rates, employee discipline and termination, and certain Store 360 security measures. Furthermore, Plaintiff accepted phone calls at home from her subordinates at Store 360 regarding incidents that arose at Store 360 when she was not working.
Id. at * 21.
Based on these duties, the Court observed that “Store 360 could not have operated successfully unless Plaintiff performed her managerial functions.” As the most senior on-site employee, the Court found she was relatively free from supervision on a day-to-day basis even if she had an “active” Area Supervisor because, inter alia, the Area Supervisor was responsible for ten stores. Finally, based on the Court’s estimate of the compensation of Plaintiff’s assistant manager, Plaintiff was paid approximately 31.7% more than that employee, her highest-ranking subordinate.
While the Guinup decision is favorable to employers, the applicability of the executive exemption continues to be a fact-sensitive, highly technical analysis with divergent court opinions. Whenever a managerial employee is not the highest ranking on-site employee (as Guinup was), particular care must be taken in assessing applicability of the exemption. And even if the employee is the highest rank on-site there must be significant exercise of managerial duties. All retail employers must focus on this issue.