In exemption cases (or lawsuits), a title means nothing.  You can call a janitor a Maintenance Engineer but if his primary duties are sweeping up, he will still be deemed non-exempt.  Actual duties control the determination.  An employee holding the title of Battalion Chief in a fire department is making that very allegation, i.e., the title belies the non-exempt status of the job.  The case is entitled Booth v. Lumpkin County Board of Commissioners, and was filed in federal court in the Northern District of Georgia.

The employee quit in October 2022 and alleges that she was not paid proper overtime, as a result of her misclassification.  She alleges that her primary duties were firefighting, effecting rescues of people and then seeking to curtail damage to property resulting from these catastrophes.  She claims she always worked more than forty hours, including off-the-clock work and she had to attend a monthly battalion chief meeting that would often be four hours in length.

The Complaint elaborates on these charges by asserting that “other regular work performed by plaintiff on days she was not scheduled to work and for which defendant did not maintain accurate time records included attending meetings, answering phone calls, receiving and sending text messages and emails, serving on ‘on-call’ capacity, completing evaluations and reports, responding to emergencies, scheduling and other tasks.”

The plaintiff has made the “right” allegations in an effort to show she was non-exempt.  She asserts that that “she never had the authority to hire or fire any employees, didn’t exercise “any discretion or independent judgment with regard to matters of significance,” and didn’t perform any primary job duties that required “knowledge of any advanced type in a field customarily acquired by prolonged, specialized, intellectual instruction or study.”  She claims liquidated damages and attorneys’ fees in addition to the actual wages (as plaintiffs always do!).

The Takeaway

Exemption cases often rise, or fall, on the primary duty test.  An employee can perform some non-exempt work but if the amount of that work creeps up and predominates over the true managerial duties, that can be a problem for the employer.  The key is that the burden of proof is and always remains on the employer to prove the exemption, and if there are no documents that evidence the exercise of managerial functions (e.g. signing termination letter), that allows a plaintiff’s lawyer to fill in those gaps with claims of excessive non-exempt work.

Primary duty is everything…