Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1991)

MEMORANDUM^** 

OVERVIEW

We must determine whether five state patrol sergeants and two game sergeants were executive employees and exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). The district court found initially that each sergeant was exempt. Because its written findings were not specific enough for us to determine whether the FLSA definitions of "management" and "primary duty" were properly applied to each individual sergeant, we remanded for the limited purpose of more specific findings. Having reviewed the district court's supplemental findings of fact, we now affirm.

BACKGROUND

Five patrol sergeants and two game sergeants participated in a class action seeking overtime compensation for hours exceeding 40 per week. The court found that these seven sergeants were exempt from FLSA's overtime requirement as executive employees because first-line supervision of troopers was their primary duty.

The sergeants appealed, alleging that the court misapplied the law by equating their supervisory work with "management" as defined under the FLSA. Alternatively, they argue that the court's findings that they were executive employees was clearly erroneous. They seek attorneys' fees.

DISCUSSION

We review findings of fact under the clearly erroneous standard. Fed. R. Civ. P. 52(a). We will accept the court's findings unless we are left with the definite and firm conviction that a mistake has been committed. United States v. Silverman, 861 F.2d 571, 576-77 (9th Cir. 1988). We review questions of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Whether an employee falls within one of the FLSA exemptions is ordinarily a question of fact. Wainscoat v. Reynolds Elec. & Eng'g Co., Inc., 471 F.2d 1157, 1161-62 (9th Cir. 1973).

FLSA regulations establish a "short-test" for determining whether an employee who earns at least $250 per week is employed in an executive capacity and is exempt. 29 C.F.R. Sec. 541.1. That test applies to the sergeants here.

The test has two requirements. First, the employee's primary duty must consist of the management of the enterprise or a customarily recognized department or subdivision. Second, the employee must customarily and regularly direct the work of two or more employees. Id. As it is undisputed that each sergeant regularly supervised two or more employees, the second requirement is not at issue here.

The regulation gives examples of duties considered managerial under the FSLA. These include training others, appraising employee efficiency for the purpose of recommending changes in job status, maintaining records for use in supervision, setting hours, apportioning work, handling grievances, disciplining when necessary and providing for the safety of the staff and property. C.F.R. Sec. 541.102.

In its supplemental findings of fact, the district court analyzed each sergeant individually and found that each performed management duties. We have compared those duties identified as management ones to the regulation examples. Its findings of fact are not clearly erroneous, and it committed no legal error when it classified the sergeants' duties as managerial.

"In the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50%, of the employee's time." 29 C.F.R. Sec. 541.103. If the employer establishes that the employee spends more than 50% of the time performing managerial duties, the court need not evaluate any other factors to determine the employee's primary duty. Id.; see also Joiner v. City of Macon, 647 F. Supp. 718, 720-22 (M.D. Ga. 1986); Lyles v. K-Mart Corp., 519 F. Supp. 756, 761 (M.D. Fla .1981).

In its supplemental findings of fact, the district court found that management was the primary duty of sergeants Clayton, Hart, Mayfield, Roberts and Welch because each spent more than 50% of his time performing management duties. Its findings are not erroneous. We do not reach the alternative findings as to these men.

If the employee spends less than 50% of his time performing managerial duties, the court considers a set of other factors. 29 C.F.R. Sec. 541.103; see also Guthrie v. Lady Jane Collieries, Inc., 722 F.2d at 1141, 45-46.

Some of these pertinent factors are the relative importance of managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, his relative freedom from supervision, and the relationship between his salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor.

29 C.F.R. Sec. 541.103.

In its supplemental findings, the court found that management was the primary duty of sergeants Hunt and Osborne. It found that neither may have spent more than 50% of his time performing managerial duties, so it made an individualized evaluation of the other factors just listed. We have reviewed the court's analysis of these factors pertaining to each sergeant. These findings are not erroneous.

CONCLUSION

We find no clear error in the findings of fact. We also find no legal error in applying the FSLA's definitions of management and primary duty to each sergeant. We affirm the conclusion that the sergeants were exempt from the FSLA's overtime provisions as executive employees. We do not reach the issue of attorneys' fees.

AFFIRMED.