John Orton v. Johnny's Lunch Franchise, LLC ( 2012 )

MERRITT, Circuit Judge,

concurring.

I agree with the court that the “exemption” issue should be decided after the defendant describes the issue in an affirmative defense and after further proceedings. That was not done here. The district court decided the case only on a motion to dismiss under Rule 12(b)(6). We do not know what the facts are. It may be that the parties entered into a new agreement based on the company’s cash position. We do not know. I would not speculate on how the exempt status statutory language and regulations should be interpreted for various fact patterns. Nor would I indicate a view of what the result would be if the company ran out of cash and so informed its executive employees who decided to stay on the job to see if the company could get over its problems.