To qualify for the administrative exemption, DOL regulations require that an “executive assistant or administrative assistant to a business owner or senior executive of a large business “ perform his or her duties “without specific instructions or prescribed procedures” and that he or she be “delegated authority regarding matters of significance.” 29 CFR § 541.203(d). If an administrative or executive assistant to a sufficiently high level executive exercises discretion in running the CEO’s office, there is a strong argument that such employee is exempt, as evidenced by a new decision from the Court of Appeals for the Fourth Circuit. Altemus v. Fed. Realty Inv. Trust, 2012 U.S. App. LEXIS 15917 (4th Cir. July 31, 2012).
In, Altemus, the court analyzed plaintiff’s duties while working as executive assistant to CEO Donald Wood of defendant Federal Realty Investment Trust (FRIT), a real estate investment trust. Plaintiff “coordinated Wood’s travel arrangements and monitored his e-mail and communications as necessary while he was away from the office… [and] assisted Wood in his work with a number of professional organizations.” Plaintiff alleged that more than 50% of her time was spent assisting Wood with routine matters relating to his personal life and family, not supporting his job as CEO, and urged the Circuit court to adopt a “50% rule” under which, if the majority of her time were spent on non-exempt work, she could not qualify for exemption.
The court rejected this purely temporal test, correctly observing that the “term ‘primary duty’ means the principal, main, major or most important duty that the employee performs.” Id. citing 29 C.F.R. § 541.700(a). In the court’s view, plaintiff’s responsibility to complete her administrative tasks for Wood on behalf of FRIT remained “primary” at all times, even if she also performed other tasks. The court also observed that plaintiff’s high salary was nearly twice that of the non-exempt administrative assistants at the company and also was a “strong indicator of [plaintiff’s] exempt status.” (Citing 29 C.F.R. § 541.601(c)).
Altemus joins decisions at the district court level finding that key administrative assistants are properly classified as administratively exempt. See, e.g., Seltzer v. Dresdner Kleinwort Wasserstein, Inc., 356 F. Supp. 2d 288 (S.D.N.Y. 2005). With that said, the duties of every administrative assistant must be analyzed in detail under federal and state law before classifying such position as exempt.