Bigger v. Facebook, Inc.
375 F. Supp. 3d 1007
E.D. Ill.2019Background
- Plaintiff Susie Bigger worked as a Client Solutions Manager (CSM) at Facebook, retaining an IC-4 designation that Facebook classified as overtime-exempt; she alleges she worked ~60 hours/week and was not paid overtime.
- The CSM role was formed in 2013 by merging prior sales/operations roles; CSMs at IC-1/IC-2 are non-exempt, IC-3/IC-4 were treated as exempt, with common core responsibilities across levels and a pay mix of ~75% salary/25% commission.
- Bigger sued under the FLSA (collective action) and IMWL (Rule 23 class) alleging misclassification of IC-3 and IC-4 CSMs as exempt; she moved for conditional certification of an FLSA collective; Facebook moved for summary judgment.
- Facebook asserted two FLSA exemptions: the highly compensated employee test and the bona fide administrative exemption; it argued Bigger regularly promoted sales, performed marketing/consulting, and exercised discretion.
- The court found genuine disputes of material fact (e.g., whether Bigger made sales versus promoted sales; whether her work constituted marketing/consulting; and whether she exercised discretion on matters of significance) and denied summary judgment.
- The court conditionally certified an FLSA collective of IC-3 and IC-4 CSMs nationwide, authorized notice by mail and email (60-day opt-in), but denied workplace posting and reminder notices; issues about arbitration agreements and class waivers were left for later adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bigger is exempt under the FLSA as a highly compensated employee | Bigger performed non-exempt, operational and sales work (made sales), not administrative duties | Facebook says Bigger was highly compensated and regularly performed administrative duties (promoting sales, marketing, consulting, discretion) | Denied summary judgment; factual disputes preclude finding exemption as a matter of law |
| Whether Bigger is exempt under the bona fide administrative exemption | Duties were routine, prescriptive, operational, lacking discretion on matters of significance | Facebook argues primary duties were non-manual, related to business operations and involved discretion | Denied summary judgment; insufficient undisputed evidence that Bigger’s primary duties met the exemption |
| Whether conditional certification of an FLSA collective is appropriate | Bigger made a modest factual showing that similarly situated IC-3/IC-4 CSMs were subject to a common policy of misclassification | Facebook sought to limit scope (exclude employees with arbitration/class-waiver agreements or with < $100,000 pay) | Conditional certification granted for IC-3 and IC-4 CSMs nationwide; scope preserved pending discovery; arbitration issues deferred |
| Form and method of notice to potential opt-ins | Notice by mail and email; no reminder; no workplace posting; 60-day opt-in | Facebook objected to emailing, reminder notices, and notifying employees subject to arbitration | Court approved mail and email notice, denied reminder and workplace posting, denied narrowing for arbitration at this stage |
Key Cases Cited
- Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560 (7th Cir. 2012) (discusses administrative exemption and the production-versus-staff distinction in sales/marketing contexts)
- Blanchar v. Standard Ins. Co., 736 F.3d 753 (7th Cir. 2013) (analysis of discretion and independent judgment under the administrative exemption)
- Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (U.S. 2018) (FLSA exemptions receive a fair—rather than narrow—interpretation)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts may facilitate notice to potential plaintiffs in FLSA collective actions)
- Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (U.S. 2018) (federal policy favoring enforcement of arbitration agreements)