The Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., еstablishes a federal minimum wage and also — critical to this case — requires employers to pay their employees 150 percent of their hourly wage for hours worked above 40 a week. § 207(a)(1). But the Act denies this entitlement to “any employee employed in a bona fide executive, administrative, or professional capacity.” § 213(a)(1) (emphasis added).
The plaintiff was an account manager for a company (the defendant, MediaBank) that provides computer software to advеrtising agencies; she acted as a bridge between the software developers and the customers, helping to determine the customers’ needs, then relaying those nеeds to the developers and so assisting in the customization of the software, and finally helping the customers use the customized software. The district court rejected hеr overtime claim on summary judgment.
The claim relies heavily on the Department of Labor’s regulation — 29 C.F.R. Part 541' — that seeks to explain “administrative capacity,” a term thаt is not self-defining. The regulation provides that to be deemed to be employed in an administrative capacity the employee must be paid more than $455 a weеk, § 541.200(a)(1) (a requirement our plaintiff is conceded to satisfy) and his “primary duty” must be both “the exercise of discretion and independent judgment with respect to matters of significance,” § 541.200(a)(3), and “the performance of office or non-manual work directly related to the management or general business operations of the employеr or the employer’s customers.” § 541.200(a)(2). The regulation instances,
The regulation’s “primary duty” provisions, which we just quoted, are pretty vague, as is the further provision that “to meet [the] requirement [that the employee’s primary duty be directly related to management or general business operations], an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” § 541.201(a). Notice the gap: employees who don’t perform work directly related to assisting with the running or servicing of the employer’s or its customers’ business are not necessarily employees who “for example” work on an assembly line or work in a retail store as a salesperson.
Yet one sees what the regulation is getting at: a legal requirement to pay a worker a fixed percentage increase in his hourly wage if he works more than 40 hours a week doesn’t fit a worker who spеnds much of his work time off the employer’s premises, where he can’t be supervised and so if entitled to overtime would be tempted to inflate his hours. See 29 C.F.R. § 541.202(c);
Piscione v. Ernst & Young,
It might seem that in any event a requirement of additional compensation for overtime couldn’t sensibly be applied to workers, such as the plaintiff in this case, whose hours of work vary from week to week, regardless of the nature of their work or where it is performed — a worker who worked 20 hours in one week and 60 in the next would have to be paid more than one who worked 40 hours both weeks. But the statute and regulation offer solutions for the “fluctuating hours” problem. See 29 U.S.C. § 207(f); 29 C.F.R. §§ 778.114, .404, .405;
Walling v. A.H. Belo Corp.,
Still it is apparent that our plaintiff is a picture perfect example of a worker for whom the Act’s overtime provision is not intended. MediaBank, the employer, is in
Searching the Web for media outlets for advertisers, negotiating with media companies, and evaluating the effectiveness of media advertising purсhases in promoting a seller’s products or services — all these tasks are integrated in the software that MediaBank sells advertising agencies to give agency staff аccess to the full range of the agency’s activities on its computer screens. The software is complex because it integrates so many functions, and it must be custоmized to the needs of each client, which vary. The complexity and variance are where the account manager comes in. The manager of a custоmer’s account has to learn about the customer’s business and help MediaBank’s software engineers determine how its software can be adapted to the custоmer’s needs.
The account manager is not a salesman for Best Buy or a technician sitting at a phone bank fielding random calls from her employer’s customers — instead she’s on the customer’s speed dial during the testing and operation of the customer’s Media-Bank software. As the intermediary between employees of advertising agеncies struggling to master complex software and the software developers at MediaBank, she has to spend much of her time on customers’ premises training staff in the use of the software, answering questions when she can and when she can’t taking them back to MediaBank’s software developers, and then explaining their answers to the custоmer and showing the customer how to implement the answers in its Media-Bank software. Identifying customers’ needs, translating them into specifications to be implemented by the devеlopers, assisting the customers in implementing the solutions — in the words of MediaBank’s chief operating officer, account managers are expected to “go out, understand [the customers’ requirements], build specifications, understand the competency level of our customers. Then they will build functional and technical specifications and turn it over to ... developers who will then build the software, ... checking in with the account manager, making sure what they are building is ultimately what the customer wanted.”
Thus the plaintiffs primary duty was directly related to the general business operations both of her employer and (as in a consulting role) of the employer’s customers. It is true that the regulation, only
Affirmed.