Under the long test, an individual is exempt if he had primary duties consisting of the performance of office or non-manual work directly related to management policies or general or general business operations of his employer or his employer's customers; he customarily and regularly exercised discretion and independent judgment; he executed under only general supervision special assignments and tasks; and he spent no more than 20 percent of his hours in the work week on activities that are non-exempt work. See 29 C.F.R. 541.2 (a)- (d). For the reasons set forth above, Plaintiff clearly qualified as exempt under the long test.

The administrative exemption also requires that AEs exercise independent judgment or discretion on matters of significance in their work at Groupon. 29 CFR § 541.2(b).181 While a substantive determination of whether AEs satisfy this prong of the administrative exemption is an issue for another day, the crux of the Court’s analysis at this juncture is whether the issue can                                                              180 Plaintiffs’ reliance on an “Individual Contributor Job Level Chart” offers no support. Apart from the fact that common job descriptions do not provide a basis for certification as a matter of law, the document was simply a draft based solely on a consultant’s model chart without input from AEs or their supervisors.

However, the two terms have distinct meetings, and the activities that an employee Case 6:04-cv-06541-DGL-MWP Document 752 Filed 10/08/13 Page 3 of 8 3 16229528v.3 performs may not correspond with his duties. In using the term “duties,” 29 C.F.R. § 541.2 makes clear that an employer’s expectations of how an employee performs his job are centrally relevant to his status as an exempt or nonexempt employee. In arguing that his exempt status should be based solely on his actual activities and that NVR’s position in its decertification papers endorses Plaintiff’s approach, Plaintiff overlooks the fact that consideration can be given to both his actual job activities and NVR’s realistic expectations of his position.

Mot.”), p. 16-17; 29 C.F.R. § 541.2; Carhuapoma, 2013 WL 1285295, n. 3. Despite Defendants’ reliance on the job description, the record makes clear that the job description was not an accurate reflection of Plaintiffs’ job duties.

Plaintiff makes the mistake of assuming that the call center environment in Casas makes a difference, but a work address alone no more establishes exempt status than a job title does. Cf. 29 C.F.R. § 541.2. Citing Casas and the and involve more discretion than the loan originators in [Casas].”)

That is flatly improper under the FLSA, which says that a “job title alone is insufficient to establish the exempt status of any employee.” 29 C.F.R. § 541.2. “The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the [applicable regulations].”

The IWC similarly derived the duties that meet the test for the administrative exemption from languagein the federal regulation 29 C.F.R. § 541.2(a)-(c), with the exception of the "primary duty" phrase. Section B(1)(b), which restates 29 C.F.R. § 541.2(a)(2), refers to school administration, but is not intended to establish a different test with regard to school administration, or to affect the professional exemption as it relates to teachers, or to otherwise change existing law. Section B(4) sets forth the California "primarily engaged" requirement.

Accordingly, for purposes of determining the applicability of the FLSA’s professional exemption, the Court should evaluate Plaintiff’s actual job duties, rather than any title or label given to him. See 29 C.F.R. § 541.2 (“A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the regulations in this part.”)

Id. at 550 (emphasis added) (citing 29 C.F.R. §§ 541.2; 541.700); Vasquez v. Vitamin Shoppe Ind., Inc., No. 10-cv-8820, 2011 WL 2693712, at *3 (S.D.N.Y. July 11, 2011) (uniform classification of store manager position as exempt was not a common policy or plan in violation of the FLSA).

Assistant Branch Managers clearly meet the requirement that the performance of their primary duty “include[] work requiring the exercise of discretion and independent judgment.” 29 C.F.R. § 541.2(e)(2). The exercise of discretion and independent judgment requires “the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered.”