29 C.F.R. § 541.206(b); 29 C.F.R.§ 541.103. To the extent that Assistant Branch Managers spent 50% or more of their time on nonexempt duties, the Court applies the same primary duty test as for the executive exemption.

177 Yet, an employee who does not spend more than fifty percent of his or her time on exempt work can also satisfy the primary duty requirement. 29 CFR § 541.103; see also Dewalt, 902 F. Supp. 2d at 1134- 35 (plaintiff’s primary duty was “communicating with prospects” and “even if [plaintiff’s] sales tasks Case: 1:11-cv-05685 Document #: 194 Filed: 11/26/13 Page 41 of 52 PageID #:3902 36   how much time AEs spend performing exempt activities versus non-exempt activities is not amenable to being determined on a class wide basis given the varying degrees to which AEs perform the above-described job functions. Hundt, 2013 WL 3338586, at *7 (where in decertifying a class the Court explained that “…determination about each plaintiff’s primary duty must be undertaken individually…”).

Generally, ‘primary duty’ means ‘the major part, or over 50 percent, of the employee’s time.’ 29 C.F.R. § 541.103 (2003). But the court considers several other factors even where employees fall below this threshold, including ‘the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, [and] his relative freedom from supervision.’

The regulation states that “(i)n the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee's time.” 29 C.F.R. § 541.103. There are two problems with this guideline.

As a matter of law, a unit of business that has a “permanent status or function” is a recognized department or subdivision for purposes of the second element of the exemption. 29 C.F.R. § 541.103(a). “A recognized department or subdivision may move from place to place and the subordinate personnel may change, as long as the ‘unit’ has a continuing function.”

As a matter of law, a unit of business that has a “permanent status or function” is a recognized department or subdivision for purposes of the second element of the exemption. 29 C.F.R. § 541.103(a). “A recognized department or subdivision may move from place to place and the subordinate personnel may change, as long as the ‘unit’ has a continuing function.”

As a matter of law, a unit of business that has a “permanent status or function” is a recognized department or subdivision for purposes of the second element of the exemption. 29 C.F.R. § 541.103(a). “A recognized department or subdivision may move from place to place and the subordinate personnel may change, as long as the ‘unit’ has a continuing function.”

11 This phase is shortened in this motion to “department,” which encompasses the parenthetical subdivision. 12 The administrative guidance from the Washington Department of Labor and Industries attached as Exhibit Q to the Eberhardt Declaration mirrors the applicable federal regulation, 29 C.F.R. § 541.103. More generally, the MWA’s definitions substantially parallel their federal counterparts under the Fair Labor Standards Act (“FLSA”), Jones v. Rabanco, Ltd., 439 F. Supp. 2d 1149, 1167 (W.D. Wash. 2006), and cases interpreting the FLSA are persuasive authority in Washington.

The regulations define a “department or subdivision” as any “unit Case 2:15-cv-00867-LDW-AKT Document 34 Filed 05/13/16 Page 13 of 29 PageID #: 113 10 with permanent status and a continuing function.” 29 C.F.R. §541.103(a). There can be no dispute that Plaintiff supervised a permanent and identifiable department or subdivision associated with the packaging process, whether it be the four packaging lines of Unit 3 or the packing and boxing lines of Unit 5.

The USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 6 of 10 7 regulations explicitly state none of these scenarios affects whether the ingot line is a recognized department or subdivision. First, the regulations specifically provide “An otherwise exempt employee will not lose the exemption merely because the employee draws and supervises workers from a pool or supervises a team of workers drawn from other recognized units…” 29 C.F.R. § 541.103(d). Brown shared supervision of the UTOs only the extent he and other supervisors determined whether Brown or another supervisor had more need for a UTO at a specific period.