By: Marisa S. Ratinoff and Amy B. Messigian

Exempt or non-exempt: That is the question.  One of the most difficult areas in wage and hour law for retailers is properly classifying their managerial employees for purposes of determining if overtime need be paid or meal and rest breaks provided.  Long has been the rule that the actual duties the employee performs will determine if he or she is misclassified.  While this is often frustrating to retailers, whose assessment of an individual’s job duties may be a judgment call as to whether they meet or do not meet the specific requirements of an exemption, the fact that an individual analysis is required may prevent class certification.

The California Court of Appeal just affirmed a trial court’s denial of class certification for Sears, Roebuck and Co.’s managers and assistant managers, holding too many individualized issues existed for the misclassification claims to be resolved on a class wide basis.  While the employees’ job descriptions may provide a uniform basis for class-wide resolution, the required assessment of each manager’s or assistant manager’s actual job duties did not.

Accurate job descriptions are critical but equally as important, and what often gets neglected, is understanding the duties the employee actually performs.  The employee’s actual duties will determine the outcome of a single plaintiff’s misclassification claim and provide a defense to class-wide misclassification claims.