4th Cir.: No Overtime Pay Required for Executive Assistant

An executive’s assistant was exempt from overtime pay under the Fair Labor Standards Act and Maryland wage and hour law because her job required significant exercise of discretion and independent judgment, the U.S. Court of Appeals for the Fourth Circuit ruled recently.

The assistant reported to the CEO of Federal Realty Investment Trust  (FRIT), in Maryland, holding the job from the fall of 2003 through the spring of 2010. She maintained that she spent more than 50 percent of her time doing such tasks as coordinating the CEO’s travel arrangements, monitoring his e-mail and calls while he was away from the office, and helping him in his work with several professional organizations.

The assistant asserted that (1) she routinely worked more than 40 hours a week at FRIT, (2) she spent 70 to 80 percent of her time performing personal work for the CEO and his family, and (3) she should be classified as nonexempt and paid overtime

Section (7)(a)(1) of the FLSA requires that employers pay their employees time and a half for work over forty hours a week.  However, the FLSA provides an exemption from this overtime requirement for persons “employed in a bona fide executive, administrative, or professional capacity.”

The appeals court said that the assistance didn’t meet the exemption test since her “primary duty” included the exercise of discretion and independent judgment with respect to matters of significance. That, rather than the percentage of her time spent on various tasks, meant she was clearly exempt from overtime pay.

The case is Altemus v. FRIT,  No. 11-2213 (2012).

The decision was unpublished, meaning you’re not supposed to cite it as precedent. But it’s still a window into the court’s thinking, and could influence another decision down the line.

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