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Employees who routinely made hiring, firing recommendations came under FLSA executive exemption

By Matt Pavich

Employees who routinely made hiring and firing and disciplinary recommendations, which their employer frequently accepted, were executive employees exempt from the FLSA’s overtime and minimum wage requirements, the Eighth Circuit has ruled. The court also ruled that the prevailing employer was not precluded from recovering costs from the plaintiff employees (Garrison v. ConAgra foods Packaged Foods, LLC, August 15, 2016, Bough, S.).

An employee filed a class action suit under the FLSA and Arkansas Minimum Wage Act, alleging that her employer had misclassified her as an exempt employee. Nine other employees opted into the suit and sought overtime and minimum wage payments. The employer moved for summary judgment, which the district court granted. The court denied the employer’s motion for costs, however, and the employer appealed.

Employees were exempt. The appellate court affirmed summary judgment for the employer. In order to prevail, the employer needed to show that the employees, who lacked hiring and firing authority, made recommendations regarding hiring, firing, promotions, and discipline to which the employer gave “particular weight.” The court noted that the Department of Labor makes findings as to “particular weight” by looking at whether such recommendations are part of an employee’s job and the frequency of recommendations and the employer’s acceptance of them. Recommendations may have particular weight even if a higher level manager’s recommendation carries more weight.

Here, the employees’ recommendations carried sufficient weight. The record demonstrated that they had made recommendations on discharge or a probationary employee, which the employer accepted. In doing so, the employees had to appraise performance. The record further showed that if the employees gave poor evaluations to subordinates, those subordinates would be demoted. Furthermore, the plaintiff employees had the power to fill temporary vacancies by moving workers from one classification to another. Lastly, each of the employees had recommended discipline and the employer accepted all recommendations. Thus, the appellate court found that the employees were executive employees exempt from the FLSA requirements.

Employer could recoup costs. As a final matter, the court vacated the district court’s denial of the employer’s motion for costs. The appellate court ruled that because the FLSA is silent on whether prevailing defendant employers can recoup costs, the employer in this case was not precluded from collecting the costs, and it remanded the matter back to the district court.