Litigating California Wage & Hour and Labor Code Class Actions

analysis is instructive as to how another court may address the issue of concurrently
exempt and non-exempt duties the next time it arises.
The Murphy appellate court held that a manager could not satisfy the executive exemption
where he spent 90 percent of the time working in non-exempt tasks even though he was
continually keeping an eye on other employees and otherwise “managing” throughout the
day while his hands engaged in the same kind of work his non-exempt subordinates
performed. The court reasoned that a manager is non-exempt when he is “a nominal
coxswain who performed most of the time as an oarsman alongside the rest of the crew.” 26
The court did not state, however, that time spent simultaneously directing other employees
and engaged in non-exempt tasks counts purely as non-exempt time. Rather, the court
suggested that the time spent in such a dual capacity may need somehow to be allocated
between exempt and non-exempt time. 27 As such, time engaged simultaneously in exempt
and non-exempt work might generate at least partial credit towards the 50 percent exempt
threshold to qualify for the exemption. Further development in the case law is required to
clarify this concept.
C. The Administrative Exemption
1. General Overview
Like the FLSA, California wage and hour law recognizes an administrative overtime
exemption. 28 To qualify for the exemption in the most common circumstances, 29 the
employer must establish four elements:
1) More than one-half the employee’s work time involves the performance of
office or non-manual work directly related to the employer’s management
policies or general business operations;
2) The employee customarily and regularly exercises discretion and independent
judgment in carrying out job duties as to matters of significance to the
business. 30
26
27
28
29
30
Id. at 744.
Id. at 744 n.8.
See, e.g., Wage Order 7-2001 § 1(A)(2).
There are alternative bases to qualify for the administrative exemption such as through regularly and directly assisting a
proprietor or performing administrative function in a school system, but those alternative bases rarely come up in class
litigation.
Some courts mistakenly hold that employees must exercise discretion and independent judgment more than fifty
percent of the time. In fact, the term “customarily and regularly” is defined in the FLSA regulations that are incorporated
in the Wage Orders and “more than occasionally but less than constantly.” It is generally established by showing that a
duty is carried out on a recurrent, non-sporadic basis. See Baca v. United States, 1 Wage & Hour Cas. 2d (BNA) 1066
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