Kennedy, Terry J. v. Commonwealth Edison ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2971
TERRY J. KENNEDY, et al.,
Plaintiffs-Appellants,
v.
COMMONWEALTH EDISON CO.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-C-4053—Joe Billy McDade, Judge.
____________
ARGUED APRIL 16, 2004—DECIDED JUNE 2, 2005
____________
Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Although the Fair Labor Standards
Act (FLSA) guarantees overtime compensation for many
workers, its protections do not extend to everyone. In this
case, 55 employees of Commonwealth Edison (“ComEd”)
claim that ComEd classified them on the wrong side of the
line—namely, as administrative employees who fall within
an exemption to the FLSA’s overtime promise. See 29 U.S.C.
§ 213(a)(1). In a series of rulings, the district court ultimately
concluded that ComEd had met its burden of demonstrating
for purposes of summary judgment that the employees were
correctly classified, both for purposes of the FLSA and for
2 No. 03-2971
a closely related claim under the Illinois Minimum Wage
Law (IMWL), 820 ILCS 105/4a. The employees appealed,
and we affirm.
I
We begin with an introduction to the parties. The 55
plaintiffs are employed at five nuclear power plants now
operated by Exelon Generation Company, LLC (“Exelon
Generation”). Plaintiffs fall into five different groups: 42 are
Work Planners; three are Lead Work Planners; four are First
Line Supervisors; three are Supply Analysts; and three are
Staff Specialists (two in the Engineering Department and
one in the Chemistry Department). We save for later a more
detailed discussion of what these jobs entailed.
The identity of the defendant, or defendants, caused us
some trouble at oral argument. The caption of the case
names only Commonwealth Edison Company, but the lawyer
who appeared on ComEd’s behalf listed himself as counsel
with Exelon Business Services Company. This prompted us
to ask what the relationship was between Exelon Business
Services (obviously not an outside law firm) and ComEd,
and whether ComEd was still a proper party in the case.
The parties responded with post-argument briefs, in which
they explained that ComEd is still a separate corporate en-
tity, though now a subsidiary of Exelon Corporation
(“Exelon”). ComEd is the only defendant ever served in this
case and it has admitted that it employed the plaintiffs at
the time the case began in May 2000. On October 20, 2000,
ComEd’s parent, Unicom Corporation, merged with Exelon,
which is when ComEd became Exelon’s subsidiary. Shortly
after the merger, Exelon took a number of steps to restruc-
ture its businesses. As part of that process, ComEd trans-
ferred its five nuclear plants to Exelon Generation, a
different wholly- owned subsidiary of Exelon. That transfer
was effective January 1, 2001, at which time the plaintiffs’
No. 03-2971 3
employer changed from ComEd to Exelon Generation.
ComEd itself, no longer in the power generation business,
became a subsidiary of Exelon Energy Delivery Company,
LLC, which is a wholly-owned subsidiary of Exelon. Yet
another subsidiary of Exelon, Exelon Business Services
Company (“Business Services”) provides legal services
(among other things) to the various members of the Exelon
family. The parties dispute the significance of the fact that
the plaintiffs never took steps formally to add Exelon Genera-
tion as a party defendant to the case. Plaintiffs argue that,
given the way the litigation has proceeded, Exelon Genera-
tion is a de facto defendant, and that it would be a mere
formality to add it as a party on remand; ComEd concedes
that the case is alive against it for any salary claims before
January 1, 2001, but it implies that plaintiffs have no claim
against Exelon Generation. While it seems fairly clear that
Business Services has been representing whichever member
of the corporate family was the employer, we need not
explore the intricacies of this situation in detail. Given our
disposition of the merits, it can wait for another day.
Exelon proclaims on its website that it “operates the
largest nuclear fleet in the United States, the third largest
commercial nuclear fleet in the world, and is generating
nuclear energy more efficiently than ever.” See http://
www.exeloncorp.com/corporate/about/a_overview.shtml. The
five nuclear power plants at which the plaintiffs worked are
part of that “fleet.” Because their appeal turns on an ap-
preciation of what exactly it was that they did for ComEd (and
now for Exelon Generation), we must identify the duties and
responsibilities of each position.
Work Planners. Forty-two of the plaintiffs held the job
title of “Work Planner.” Work Planners are essentially prob-
lem solvers. Whether in the electrical area, the mechanical
area, or the instrument area, a Work Planner’s primary
duty is to prepare and create a “work package.” If some-
thing at the plant needs to be repaired, if something needs
4 No. 03-2971
to be inspected, or if equipment needs to be modified, the
Work Planner is responsible for devising the solution to the
problem. He or she first studies the problem and decides
what kind of labor, materials, and equipment will be needed
for the project. The Planner may study a computer database
to find out what has been done before on similar problems,
to see what parts are available, and to review repair
procedures. The Planner may also make a visual inspection
of the problem area to verify the exact nature of the prob-
lem and to assess the situation personally. Once the
Planner has written up the proposed work package, she
submits it to another Work Planner for technical review.
Further review after that step is also possible.
Lead Work Planners. Three of the plaintiffs held the title
of “Lead Work Planner.” These employees are essentially
middlemen between the Planners and the higher-ups. They
review the Planners’ work packages, conduct spot-checks to
make sure the Planners’ work is adequate, and often write
work packages themselves. Lead Planners must keep those
working under them on task, conforming to a strict schedule
dictated by ComEd’s Work Control Department. To keep
her group on schedule, the Lead Planner must assess the
efficiency of various possible approaches and determine
which Planner has the time and experience necessary to
handle a particular assignment. The Lead Planner coordi-
nates with other departments, anticipating and removing
any roadblocks that could slow her team down. The Lead
Planner also provides information to her supervisor,
discussing the Planners’ progress and assessing the feasibil-
ity of staying on schedule.
First Line Supervisors. Four plaintiffs held the title of
“First Line Supervisor.” These Supervisors instruct and
oversee the crew of workers that carries out the work pack-
ages the Work Planners design. This requires the Supervisor
to understand the work package, explain what needs to be
accomplished to the workers, and choose the workers who
No. 03-2971 5
are best suited for each task. The Supervisor advises her
team throughout the project. If an unanticipated problem
arises, the Supervisor discusses the problem with a Work
Planner. In these discussions, the Supervisors will often
offer their opinion as to how best to remedy the concern.
After completing a work package, the Supervisor is respon-
sible for debriefing her work crew on their performance.
Supply Analysts. Three of the plaintiffs held the title of
“Supply Analyst.” Essentially buyers for the corporation,
Supply Analysts locate replacement parts for needed re-
pairs. Given the complexity of a nuclear power plant, this
can be a difficult task. Frequently the proper part is no
longer manufactured, requiring the Supply Analyst to
search a computer database, vendor catalogs, and her own
past experience to find a safe substitute that will meet
ComEd’s exacting standards. Supply Analysts often check
each other’s work in an attempt to ensure that they have
found the optimum replacement.
Staff Specialists. The remaining three plaintiffs were clas-
sified as “Staff Specialists.” Two worked in the Engineering
Department, and one in the Chemistry Department. These
Specialists focus on keeping the ComEd plants compliant
with the Nuclear Regulatory Commission’s guidelines. The
Chemistry Specialist coordinates training for employees,
tests machinery to check for possible equipment failures,
and makes suggestions for improvements in the department’s
procedures and protocols. The Engineering Specialists do
not coordinate training, but, apart from that task, their
duties are substantively the same as those of the Chemistry
Specialist. If the Specialists believe that they have discov-
ered a problem, they consult a guidebook that explains the
corrective procedures to follow. After consulting the guide-
book, the Specialists draft a report detailing their concerns
and recommending a solution.
6 No. 03-2971
II
Under the FLSA, 29 U.S.C. § 201, et seq., employers must
pay overtime to employees working on an hourly basis. If
such an employee works more than 40 hours in a week, she
must receive at least one and a half times her regular wage
for every extra hour worked. See 29 U.S.C. § 207(a)(1).
Critically for our purposes, however, there is a significant
exception to this rule: it does not apply to individuals “em-
ployed in a bona fide executive, administrative, or profes-
sional capacity.” 29 U.S.C. § 213(a)(1). The FLSA does not
define “executive, administrative, or professional capacity”;
instead, it expressly delegates that task to the Secretary of
Labor who may “from time to time” alter the definitions.
See 29 U.S.C. § 213(a)(1).
From “time to time” has proved to be fairly infrequent. A
few days after oral argument in this case, the Secretary
issued a comprehensive set of new regulations, see 69 Fed.
Reg. 22,260 (April 23, 2004), but it had been some time
since the last changes. The FLSA’s duties test, which deter-
mines which jobs qualify for exempt status, had not been
changed significantly since 1949. The Act’s definitions for
what it means to work on a “salary basis” had not changed
since 1954, and the Department of Labor (“DOL”) had last
adjusted the minimum qualifying salary levels in 1975.
Although the Secretary’s interpretive hiatus ended while
this appeal was pending, the new definitions do not apply
retroactively, saving us from having to send the case back
to the district court for new findings. See Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“a stat-
utory grant of legislative rulemaking authority will not, as
a general matter, be understood to encompass the power to
promulgate retroactive rules unless that power is conveyed
by Congress in express terms.”). We therefore stick with the
old regulations, which (like their new counterparts) have
“the force and effect of law,” as the statute expressly
authorizes their promulgation. See Batterton v. Francis, 432
U.S. 416, 425 n.9 (1977).
No. 03-2971 7
ComEd contends that each of the plaintiffs was exempt
from receiving overtime because, properly characterized, they
were all “administrative” employees. Under the old reg-
ulations, there was both a long test, see 29 C.F.R. § 541.2
(a)-(e) (2001), and a short test, see 29 C.F.R. § 541.214
(2001), to determine whether an employee fell within the
administrative exception. Under the new regulations, there
is just one test, see 29 C.F.R. § 541.200 (2004), but, as we
noted, we must apply the old rules to this case. (Unless we
note otherwise, citations to the regulations are to the 2001
version we are using here.) Both parties agree that we
should use the short test, which applies to “high salaried
administrative employees.” 29 C.F.R. § 541.214. In part
because the DOL had not amended this section since 1975,
plaintiffs qualified as “high salaried” and therefore eligible
for the short test, which required only that they be “com-
pensated on a salary or fee basis at a rate of not less than
$250 per week exclusive of board, lodging, or other facili-
ties.” Id.
It is the employer’s burden to establish that an employee
is exempt from the FLSA’s overtime requirements. See
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97
(1974). To satisfy this burden under the old short test, the
employer has to demonstrate that the employee meets three
conditions. See 29 C.F.R. § 541.214; Piscione v. Ernst &
Young, 171 F.3d 527, 533 (7th Cir. 1999). First, the employer
has to pay the employee on a salary basis, as defined in the
regulations. Piscione, 171 F.3d at 533. Second, the primary
duty of the employee must involve office or nonmanual work
“directly related to management policies or general business
operations.” Id. Finally, the employee’s job has to “include[ ]
work requiring the exercise of discretion and independent
judgment.” Id. As the district court properly concluded, it is
ComEd’s burden on summary judgment to show that there
is no genuine issue of material fact on each one of these
points.
8 No. 03-2971
Salary Basis. Whether ComEd can show that it paid the
plaintiffs on a salary basis depends on whether, under the
plaintiffs’ employment agreements, they “regularly receive[ ]
each pay period . . . a predetermined amount constituting
all or part of [their] compensation, which amount is not
subject to reduction because of variations in the quality or
quantity of the work performed.” 29 C.F.R. § 541.118(a)
(now codified under 29 C.F.R. § 541.602(a) (2004)). “If an
employer docks an employee’s pay for partial day absences,
violations of rules other than those of safety, or based on
the quantity or quality of the employee’s work, the em-
ployee is not considered to be on a salary basis.” Piscione,
171 F.3d at 534.
The plaintiffs, amalgamating the various job categories,
make three arguments for why they are not employed on a
“salary basis” even though they are identified as “salaried”
on ComEd’s payroll and receive salaried employee benefits.
First, the plaintiffs contend that because ComEd tracked
employee time and sometimes paid the plaintiffs more than
their listed salaries, the resulting upward fluctuations must
mean that they were hourly workers. Yet the old regulation
stated plainly that “additional compensation besides the
salary is not inconsistent with the salary basis of payment.”
See 29 C.F.R. § 541.118(b). As we have said before, “when
the regulation’s interpretations state that a salaried em-
ployee’s pay ‘is not subject to reduction because of varia-
tions in the quality or quantity of the work performed,’ 29
C.F.R. § 541.118(a), a reduction of salary must have
actually occurred for an employee to lose the exemption.”
Klein v. Rush-Presbyterian-St. Luke’s Med. Ctr. 990 F.2d
279, 286 (7th Cir. 1993) (emphasis added). For obvious
reasons, the DOL is concerned more with reductions in a
salaried employee’s wages that are correlated with the
number of hours worked than it is with increases. See
Wage-Hour Op. Ltr. No. 1738 (April 6, 1995) (“[E]xtra
compensation may be paid for overtime to an exempt
No. 03-2971 9
employee on any basis. The overtime payment need not be
at time and one-half, but may be at straight time, or at one-
half time, or flat sum, or any other basis.”). The situation
would be different if the plaintiffs’ salaries were so far be-
low their actual compensation (calculated on an hourly basis)
that the “salary” was “nothing more than an illusion,” see
Mich. Ass’n of Gov’t Employees v. Mich. Dept. of Corrs., 992
F.2d 82, 84 n.3 (6th Cir. 1993), but that is not the case here.
Second, the plaintiffs argue that they are not salaried em-
ployees because ComEd’s “Snow Day Policy” subjects them
to an impermissible reduction in pay. The plaintiffs’ wages
have never been decreased under this policy, but both the
old and new regulations state that being “subject to” a
reduction in pay is sufficient to prevent an employee from
being considered “salaried.” See 29 C.F.R. § 541.118(a)
(2001); 29 C.F.R. § 541.602(a) (2004). The phrase “subject
to” does not require proof that an employer has reduced an
employee’s wages; “an employment policy that creates a
‘significant likelihood’ of [a] deduction” will suffice. Auer v.
Robbins, 519 U.S. 452, 461 (1997); see also Klein, 990 F.2d
at 286 (“ ‘Subject to reduction’ does not mean that a reduc-
tion was actually made. The plain meaning of the language
suggests that it is enough that a deduction could have been
made for an impermissible reason.”).
ComEd’s Snow Day Policy, as recounted in an informal
email to ComEd managers and supervisors, states:
[E]mployees who cannot get to work at all as a result of
extremely hazardous conditions and roads made im-
passable by a heavy snowstorm will be given the option
of either taking a vacation day or the day off without
pay. Employees who do report to their regular work lo-
cation for work during their basic day, but are late de-
spite taking every precaution and making every effort
to be on time, will be paid for the entire day.
While this email contemplates the possibility of an em-
ployee’s choosing to take a day off without pay, it does not
10 No. 03-2971
state that ComEd will reduce a salaried employee’s wages
for failing to make it to work during a snowstorm. Being
given the choice to make up the time lost is not the same as
having a policy that imposes deductions for failing to show
up. See Haywood v. North Amer. Van Lines, 121 F.3d 1066,
1070 (7th Cir. 1997). The record indicates that even if an
employee had chosen to take the day off without pay,
ComEd would not have reduced her salary. Instead, ComEd
would have issued a check in the same amount as always,
but would have reduced the employee’s number of personal
leave days by one. The FLSA does not prohibit this type of
non-monetary deduction. See id. (“Nothing in the regula-
tions suggests that an employee loses his exempt status
simply because his employer disciplines him in a non-
monetary fashion for failing to work during his scheduled
time.”). While the plaintiffs contend that the policy would
require ComEd to reduce an employee’s salary if she had
already exhausted her personal leave days, the email does
not dictate such a result. Given that ComEd has never
reduced an employee’s salary on this basis, we find this lone
email, which does not spell out the feared result, insuf-
ficient to create a genuine issue of material fact that the
policy subjected the plaintiffs to a reduction in salary.
Finally, the plaintiffs attempt to prove that they are not
salaried by identifying a few instances where ComEd im-
permissibly docked small portions of three of the plaintiffs’
wages. ComEd admits these improprieties, but argues that
the deductions were inadvertent and that the affected work-
ers have since been repaid. Through a “window of correc-
tion,” the old regulations protected employers who intended
to pay their employees on a salary basis, but who, inadver-
tently and infrequently, docked an otherwise salaried
employee. See 29 C.F.R. § 541.118(a)(6) (“where a deduction
not permitted by these interpretations is inadvertent, or is
made for reasons other than lack of work, the exemption
will not be considered to have been lost if the employer
No. 03-2971 11
reimburses the employee for such deductions and promises
to comply in the future.”); see also 29 C.F.R. § 541.603(c)
(2004).
While “the plain language of the regulation sets out ‘inad-
verten[ce]’ and ‘made for reasons other than lack of work’ as
alternative grounds permitting corrective action,” see Auer,
519 U.S. at 463, the employer may take advantage of the
regulation only if it objectively intended to pay its employ-
ees on a salary basis. See Whetsel v. Network Prop. Servs.,
L.L.C., 246 F.3d 897, 901 (7th Cir. 2001). If the employees
can show that the deductions were not merely happen-
stance, but a routine practice or company policy, the
employer may not rely on the margin of error tolerated by
the regulation. Here, the plaintiffs can identify only three
affected individuals among them, none of whom lost more
than the equivalent of a few hours of pay. There was no
pattern to the deductions and they occurred over the
equivalent of 470,000 work weeks. We note also that the
instances cited in the plaintiffs’ brief all occurred during the
calendar year 2000, and most were around the time that
Exelon was reorganizing its corporate operations. Iden-
tifying a few random, isolated, and negligible deductions is
not enough to show an actual practice or policy of treating
as hourly the theoretically salaried. Since ComEd has
reimbursed the plaintiffs for these improper, but inad-
vertent, deductions, it may invoke the regulation’s “window
of correction.” This means that these isolated instances of
deductions do not create a genuine issue of fact about the
proper characterization of the plaintiffs’ positions.
Primary Duty. Next, ComEd has to show that the plaintiffs’
duties “consist primarily of office or nonmanual work di-
rectly related to management policies or general business
operations.” Haywood, 121 F.3d at 1071; see also 29 C.F.R.
§ 541.205. Since both parties agree that the plaintiffs do
office or nonmanual work, our only inquiry is whether there
is any meaningful dispute about whether their primary
12 No. 03-2971
duties directly relate to ComEd’s management policies or
general business operations. See id. The old regulations
provided that work “directly related to management policies
or general business operations” includes activities “relating
to the administrative operations of a business.” 29 C.F.R.
§ 541.205(a). “The administrative operations of the business
include the work performed by so-called white-collar
employees engaged in ‘servicing’ a business as, for example,
advising the management, planning, negotiating, represent-
ing the company, purchasing, promoting sales, and business
research and control.” 29 C.F.R. § 541.205(b). “These
interpretive regulations suggest a dichotomy between ‘produc-
tion’ and ‘administrative’ jobs.” Shaw v. Prentice Hall
Computer Pub., Inc., 151 F.3d 640, 644 (7th Cir. 1998). While
every job context is different, “the typical example of the
production/administrative dichotomy is a factory setting
where the ‘production’ employees work on the line running
machines, while the administrative employees work in an
office communicating with the customers and doing paper-
work.” Id. Administrative tasks constitute an employee’s
primary duty if the tasks represent “the major part, or over
50 percent of the employee’s time.” 29 C.F.R. § 541.103. In
order to evaluate this part of the plaintiffs’ argument, we
must consider each group of employees separately.
We look first at the 42 Work Planners. As we detailed
before, these employees spend the majority of their day in
an office, creating instructions for the maintenance and
repair of ComEd’s machines. The plaintiffs admit that the
Planners do not turn the wrenches themselves, but they
insist that Planners should nonetheless fall on the prod-
uction side of the production/administrative line, both be-
cause of what they are doing and because of the number of
people employed as Planners. We disagree. With respect to
numbers, the regulations foreclose the plaintiffs’ position:
“[t]he fact that there are a number of other employees of the
same employer carrying out assignments of the same rela-
No. 03-2971 13
tive importance or performing identical work does not affect
the determination of whether they meet this test so long as
the work of each employee is of substantial importance to
the management or operation of the business.” 29 C.F.R.
§ 541.205(a)(6). With respect to their duties, recall that the
Planners are responsible for “planning” and “advising the
management” about the best way to operate the plant when
difficulties arise. In that sense, their task is a strategic one;
as we noted earlier, they evaluate possible repairs, they
inspect equipment, and they decide whether equipment may
need to be modified.
The inspection work most obviously relates to planning,
insofar as it is designed to spot trouble in advance and
decide what steps to take. The role the Planners take in
repairs and modifications is both to map out solutions to a
particular problem and to advise on future actions. The
mere fact that their advice and planning relates directly to
plant operations is not enough to make them, personally,
the actual production employees. As the regulations explain,
the exemption “is not limited to persons who participate in
the formulation of management policies or in the operation
of the business as a whole.” It includes those “whose work
affects business operations to a substantial degree, even
though their assignments are tasks related to the operation
of a particular segment of the business.” 29 C.F.R.
§ 541.205(c). Given the reality of the Planners’ daily routine,
we see no genuine issue of fact with respect to the “duties”
portion of ComEd’s burden with respect to this group.
The Lead Planners and the First Line Supervisors are
part of the administrative operations of the business be-
cause their primary task is managing the work of others.
They do no physical work, but rather guide other employees
to make sure that work packages are implemented effi-
ciently and tasks are completed on time. Lead Planners and
Supervisors fall on the administrative side of the adminis-
tration/ production line because managing others is, by
14 No. 03-2971
definition, “of substantial importance to the
management . . . of a business.” 29 C.F.R. § 541.205(c)(1).
The conclusion that the three Supply Analysts, whose
primary job is to locate replacement equipment for ComEd,
are part of the company’s administration is straightforward.
The regulations expressly classify such workers as adminis-
trative, stating, “[a]nother example of an employee whose
work may be important to the welfare of the business is a
buyer of a particular article or equipment in an industrial
plant.” 29 C.F.R. § 541.205(c)(4). While the Supply Analysts
do not sign the checks, they determine what part is needed
and inform others in the administration what ComEd needs
to purchase. The regulation classifies such jobs within the
administrative side of a company.
The record also establishes that ComEd’s Staff Specialists
can only be classified as administrative. These employees
ensure that ComEd complies with the requisite federal guide-
lines by collecting data, conducting tests, and organizing
employee training. The regulations characterize duties like
these as administrative:
In the data processing field some firms employ persons
described as systems analysts and computer program-
mers. If such employees are concerned with the plan-
ning, scheduling, and coordination of activities which
are required to develop systems for processing data to
obtain solution to complex business, scientific, or engin-
eering problems of his employer or his employer’s
customers, he is clearly doing work directly related to
management policies or general business operations.
29 C.F.R. § 541.205(c)(7). Although the regulation refers to
the “data processing field”, “the interpretive regulations are
to be used to the extent they are helpful analogies to the
case at hand.” Prentice Hall, 151 F.3d at 644. Here, the
Specialists “are concerned with the planning, scheduling,
No. 03-2971 15
and coordination of activities” necessary to discover and
rectify any compliance problems ComEd may have. These
tasks are sufficiently analogous to the regulation’s charac-
terization of “Systems Analysts” to find the Specialists’
tasks “directly related to management policies or general
business operations.”
We agree with the district court, in summary, that the
undisputed facts about the jobs each group of plaintiffs
performed show that their duties meet this part of the ad-
ministrative exemption test.
Discretion and Independent Judgment. Last, ComEd must
show that the undisputed facts demonstrate that the
plaintiffs’ duties involve the exercise of discretion and in-
dependent judgment. This determination requires “the com-
parison and the evaluation of possible courses of conduct
and acting or making a decision after the various possibili-
ties have been considered. . . . [It] implies that the person
has the authority or power to make an independent choice,
free from immediate direction or supervision and with re-
spect to matters of significance.” 29 C.F.R. § 541.207. “While
the regulations require the employee to exercise independ-
ent judgment, the term does not require this judgment to be
made in isolation.” Piscione, 171 F.3d at 535 (emphasis
removed). The fact that others may review or even reverse
an employee’s judgment does not mean necessarily that the
employee will fall outside the FLSA’s administrative
exemption. Id.
The plaintiffs make the general argument that because a
nuclear power plant is an exceedingly regulated work-
place—as they put it, “procedure driven, routine, and strictly
controlled”—there was no room for any of the plaintiffs to
exercise independent judgment. We disagree. Taken to
its logical limit, such a blanket rule would prevent any
employee at ComEd from falling under the exemption.
Moreover, “[j]ust because an employee may spend a signi-
16 No. 03-2971
ficant portion of his time engaged in ministerial or routine
tasks does not necessarily prevent the application of the
administrative exemption.” Id. at 539. While the plaintiffs’
discretion may be channeled by the regulations that apply
to this industry, that does not mean ComEd employees do
not exercise independent judgment. Certainly no one would
contend that a tax lawyer does not exercise discretion or
independent judgment just because the Internal Revenue
Code contains a highly regimented set of rules.
The plaintiffs’ job-specific arguments fare no better.
As problem solvers, the Work Planners and Lead Work
Planners exercise discretion and independent judgment with
respect to matters of significance. Their job is to come up
with a set of instructions that will remedy reported prob-
lems around the plant. The fact that they look to past work
packages for guidance and use a computer to aid their rec-
ommendations does not transform them into automatons.
Judges, to name just one profession, routinely look to past
decisions to determine how to resolve cases. Faced with
novel or not-so-novel problems, judges and Work Planners
must use their independent judgment to determine how
best to respond. The fact that a chosen action might be
overruled by a supervisor says nothing about the discretion
and judgment that went into its selection in the first place.
See also 29 C.F.R. § 541.207(e) (“The term ‘discretion and
independent judgment’ as used in the regulations . . . does
not necessarily imply that the decisions made by the em-
ployee must have a finality that goes with unlimited authority
and a complete absence of review.”).
Lead Work Planners and First Line Supervisors are in
routine contact with upper management, making recommen-
dations about projects, schedules, and personnel. This input
requires the use of independent judgment and discretion, as
is typical for supervisory roles like these. See Piscione, 171
F.3d at 537 (finding the plaintiff exercised discretion
because he had a number of supervisory responsibilities such
No. 03-2971 17
as “set[ting] the priorities for the other members of his team
[and ] . . . judg[ing] the abilities of his junior employees”).
One of the primary tasks of the Lead Work Planners and
the First Line Supervisors is to assess the members of their
team and decide which worker can complete a task most
efficiently. These are matters of consequence that require
the exercise of discretion and independent judgment.
If finding the right replacement part for a broken-down
piece of equipment involved nothing more than calling the
hardware store and having some standardized screws deliv-
ered, this case would be different. But the record reveals
that the job of a Supply Analyst for ComEd is far more
demanding. The parts that the Supply Analysts must pur-
chase are often no longer manufactured. The Analysts must
use their judgment to find a safe, compatible alternative
that will meet the exacting specifications imposed by ComEd
and the governing regulations. This is not an easy task and
we conclude that it satisfies the final component of the
administrative exemption.
We reach the same conclusion with respect to the Chemis-
try and Engineering Staff Specialists, who (as noted earlier)
are responsible for keeping ComEd compliant with the
Nuclear Regulatory Commission’s guidelines. They conduct
various tests and help train the employees in their respec-
tive departments. When they find a problem, they propose
an appropriate remedy—a responsibility that makes their
jobs somewhat similar to that of the Work Planners. Like
the Planners, the Staff Specialists exercise independent
judgment and discretion by comparing and evaluating
several possible courses of action. The Specialists’ recom-
mendations keep ComEd in line with the applicable regu-
lations, a role of unquestionable importance to ComEd and
public safety.
18 No. 03-2971
III
Having reviewed the plaintiffs’ jobs under the FLSA’s short
test, in light of the summary judgment record, we conclude
that ComEd has shown that the plaintiffs were properly
classified as exempt from the FLSA’s overtime requirement.
Since the plaintiffs’ FLSA claims fail, their related state law
claims under the IMWL must fail as well. See 820 ILCS
105/4a(2)(E) (making a violation of the IMWL contingent on
establishing a violation under the FLSA). Accordingly, we
AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-2-05