In re Family Dollar FLSA Litigation. (Lawyers Weekly No. 001-058-11, 20 pp.) (Niemeyer, J.) No. 09-2029, March 22, 2011; USDC at Charlotte, N.C. (Mullen, J.) 4th Cir.
Holding: Although a manager of a discount store performed the full range of tasks necessary for the successful operation of the store, from sweeping floors to stocking inventory and working the cash register, she nevertheless was an “exempt executive” under the FLSA, as she was the highest level employee at the store and her income depended on the success of her managerial performance and the profits of the store, says the 4th Circuit.
While at Family Dollar, plaintiff worked from 50-65 hours per week, depending on the store’s particular needs at any given time. Her salary was initially $400 a week and increased during the eight years she worked as a store manager to $655.
The district court, after reviewing plaintiff’s deposition testimony, concluded that while plaintiff performed nonexecutive tasks, she was concurrently managing the store and that her primary duties were managerial. The court said she had relative freedom from supervision, her salary was higher than nonexempt employees and she regularly exerted authority over other employees. The court granted summary judgment for defendant Family Dollar Store.
On appeal, plaintiff contends that because 99 percent of her time was devoted to nonexecutive duties, at least a genuine issue of material fact exists about whether she was an executive, precluding summary judgment against her. However, while plaintiff performed nonmanagerial tasks around the store as she determined necessary, she concurrently performed the managerial duties of running the store.
This multi-tasking – doing management jobs while doing nonexempt work – is explicitly recognized as a managerial duty by the DOL regulations, which describe the situation where a retail manager performs concurrent nonmanagement duties. While plaintiff unloaded freight or swept the floor, she also was the manager, and no one else was directly supervising her task. She remained responsible for addressing any problem that could arise and did arise during the course of the daily retail operations.
We affirm the district court order granting summary judgment, concluding that plaintiff was an executive and therefore not entitled to overtime pay.
Because plaintiff’s claim was properly dismissed on summary judgment, we do not decide whether the district court abused its discretion in declining to permit plaintiff to pursue her claim on behalf of other similarly situated employees.
Judgment for employer affirmed.