The Court of Appeals for the Tenth Circuit has held that civilian military recruiters were non-exempt employees and therefore entitled to overtime pay. As they were salaried, their back due overtime will be computed under the so-called “fluctuating workweek” method, which generates a lower recovery than traditional time and one-half. When an employee who is salaried is deemed non-exempt, his regular rate may/will change from week to week, depending on the number of hours worked in that week. That is why the regular rate fluctuates.

The employees were Army and Army Reserve recruiters for Resources Consultants Inc. in Salt Lake City, Utah. They testified that their duties extended only to cold-calling potential recruits to get them to official Army recruitment stations where they would take the varied entrance examinations and be subject to other testing/induction requirements. The company defended by asserting that their responsibilities encompassed developing better relationships with potential recruits and interacting with them more extensively, such as testing their English/math proficiency and escorting them to Military Entrance Processing Stations.

The administrative exemption is the toughest of the three white collar exemptions for employees to fit under. This category is not and cannot be used as a catch-all exemption designation for any employee whom the employer believes does some important function. There are very specific criteria that must all be satisfied. Of these, the requirement to utilize discretion and independent judgment is probably the toughest to meet, as it entails much more than just making choices while performing routine job functions.