Employee’s High Salary and Positive Performance Reviews Undermine Her FLSA Claim for Overtime

Several years of performance reviews touting an employee’s contributions and scope of responsibilities ultimately proved critical to the employer in defending against an employee’s Fair Labor Standards Act claim.  In Altemus v. Federal Realty Investment Trust, an executive assistant sued her former employer under the Fair Labor Standards Act for unpaid overtime.  Although the employer had categorized her as exempt from overtime under the FLSA, the plaintiff claimed that she was not exempt, that her administrative tasks accounted for a fairly small percentage of her time, and that about 80 percent of her time was spent performing personal work for the company’s CEO.

As proof that the plaintiff was properly characterized as exempt under the FLSA, the employer presented evidence of the employee’s extremely positive performance reviews, signed by the employee, in which the employer extolled the broad scope of the plaintiff’s responsibilities, described her as essential to the administration of all aspects of the business, and explained that she was given wide leeway to make decisions on her own.

The employee sought to counteract the praise heaped upon her in the performance reviews by arguing that her signature on the performance reviews only indicated her receipt of the review, not her agreement with the review.  She also submitted an affidavit regarding the amount of time spent on administrative tasks versus personal tasks for the CEO.  However, neither of these tactics was effective in convincing the court that she had more than a scintilla of evidence demonstrating her non-exempt status.

In rejecting the employee’s overtime claim, the court noted that the performance reviews reflected the high degree of independence and discretion enjoyed by the plaintiff, and her relatively high compensation – nearly twice that of other non-exempt assistants – further supported a finding of exempt status.  Moreover, the court also noted that the employee’s high salary itself created doubt as to whether she falls within the scope of individuals intended to be protected by the FLSA.  Although not dispositive, a high level of compensation is a strong indicator of an employee’s exempt status and therefore, according to the court, the plaintiff’s salary was further evidence of her exempt status.