Investigators were paid on a salary basis. Each investigator was required to produce 168 billable hours (i.e. hours that would be billed to clients) each month, but not all of the hours worked by an investigator were considered to be billable. Further, an investigator's billable hours could be reduced if it was determined by his supervisor that a) the hours worked were in excess of the correct time spent on the job; b) the result achieved was not commensurate with the hours worked; c) limitations imposed by the client required that the hours be reduced; or d) the work performed was a duplication of effort. (Defendant's answers to plaintiff's interrogatories at 10.)
I. Administrative and Professional Exemptions
The parties first seek summary judgment on the issue, whether the plaintiff was a bona fide administrative or professional employee within the meaning of 29 U.S.C.A. § 213(a)(1) (1965) and 19 C.F.R. §§ 541.2, 541.3, thus, rendering him exempt from the overtime provisions of 29 U.S.C.A. § 207.
The defendants contend that the plaintiff was an administrative employee within the meaning of 29 C.F.R. § 541.2 because his position was directly related to the management policies and general business operations of BIC, and he exercised a great deal of discretion and independent judgment in such things as deciding which informants to interrogate, what elements of an investigation to pursue, what questions to ask, what records to search, and how to follow up on a record search. They assert that this work was done with only general supervision. Defendants further contend that the plaintiff was a professional employee within the meaning of 29 C.F.R. § 541.3 because his position required creativity, imagination, and talent, and because it was predominantly intellectual in character.
The plaintiff responds that he was not an administrative employee because his position was not directly related to the management policies or general business operations of BIC, nor did he regularly exercise discretion and independent judgment within the meaning of 29 C.F.R. § 541.2. Plaintiff further responds that he was not a professional employee because his position did not require the advanced education required by 29 C.F.R. § 541.3.
In a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, a court must assume the resolution of any issue in favor of the non-movant, and determine whether the movant is entitled to judgment as a matter of law. First Jersey National Bank v. Dome Petroleum, Ltd., 723 F.2d 335 (3d Cir. 1983). See e.g. Hollinger v. Wagner Mining Equipment, 667 F.2d 402, 405 (3d Cir. 1981). The parties' do not dispute the facts, but how the law should be applied to these facts.
In cases where an employer is claiming that an employee is exempt from the provisions of the FLSA, the burden of establishing an exemption is on the employer. Idaho Sheet Metal Workers, Inc. v. Wirtz, 383 U.S. 190, 206, 15 L. Ed. 2d 694, 86 S. Ct. 737 (1966), reh. den., 383 U.S. 963, 16 L. Ed. 2d 305, 86 S. Ct. 1219 (1966). Furthermore, "these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 4 L. Ed. 2d 393, 80 S. Ct. 453 (1960), reh. den., 362 U.S. 945, 4 L. Ed. 2d 772, 80 S. Ct. 803 (1960).
Title 29 U.S.C.A. § 213(a)(1) provides that employees who can be considered bona fide administrative or professional personnel "as such terms are defined and delimited from time to time by regulations of the Secretary" are exempt from the time and one-half for overtime requirement at 29 U.S.C.A. § 207. The regulations for a bona fide administrative employee are found at 29 C.F.R. § 541.2 (1984), and are interpreted at 29 C.F.R. §§ 541.201 - 541.215 (1984).
The regulations set forth a "long test" and a "short test" to be used in determining whether the administrative exemption has been met, Hodgson v. Penn Packing Co., 335 F. Supp. 1015, 1020 (E.D.Pa. 1971). Which test applies depends upon the employee's salary. However, under either test both subsections (a) and (b) of § 541.2 must be satisfied. See, Goldstein v. Dabanian, 291 F.2d 208, 210-11 (3d Cir.), cert. denied, 368 U.S. 928, 7 L. Ed. 2d 191, 82 S. Ct. 364 (1961). These subsections provide as follows:
The term "employee employed in a bona fide * * * administrative * * * capacity" in section 13(a)(1) of the act shall mean any employee: