There have been literally dozens and dozens of cases involving the exempt status of bankers, loan officers and other similar job classifications. In a scenario that I find somewhat off beat, a HSBC Bank employee has filed a proposed collective FLSA action. The category of employee are so-called “relationship bankers,” which is not the traditional kind of employee filing such a suit. The theory, however, is very traditional. The employee claims that he and similarly situated people were misclassified as exempt, worked more than forty hours on a regular basis, and were not paid overtime. The case is entitled Hauer v. HSBC Bank USA and was filed in federal court in the Southern District of Florida.
The plaintiff stated that the relationship bankers earned a base salary. Their job duties were primarily providing customer service. That encompassed the solicitation of new customers, the opening of accounts and the selling of financial products. They were classified as exempt under the administrative exemption. The plaintiff alleges (as he must) that the failure to pay overtime was intentional and, therefore, a deliberate policy or practice that allegedly applied to all relationship bankers..
The suit seeks to add additional individuals employed as relationship bankers (from June 2009 forward) and is seeking, at this time, a nationwide class. Significantly, this is not the first time HSBC has been sued over its overtime policies. Last autumn, a fund accountant sued the bank, in another class action, also based on a misclassification theory. In California, an operations officer had also filed a proposed state class overtime action, but that case was settled.
It appears that the only applicable exemption for the relationship banker position is the administrative exemption. On that score, however, the duties they discharge appear to be the “white collar production” work that courts, in a long line of cases, have found is not suited for the exemption. This is because their duties do not appear to impact “general business operations,” as required under the regulations. Moreover, they appear only to exercise skill and appear to apply established methods to different factual circumstances, as opposed to using discretion and independent judgment.