DocketNumber: No. 11 Civ. 4892(SAS)
Citation Numbers: 910 F. Supp. 2d 523
Judges: Scheindlin
Filed Date: 9/24/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
I. INTRODUCTION
Adina Kadden brings this lawsuit against her former employer VisuaLex, LLC, pursuant to the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
VisuaLex argues that Kadden was exempt from the FLSA’s overtime requirements under three categories of exemption: the creative professional exemption; the learned professional exemption; and the administrative employee exemption, or a combination thereof.
I held a bench trial from August 13, 2012 to August 15, 2012. The parties made post-trial submissions on September 10, 2012.
II. FINDINGS OF FACT
A. Background of the Parties
1. Adina Kadden
In 1998 Kadden earned a Bachelor of Science from Villa Julie College in Maryland, and in 2001 she earned a Juris Doctor from Benjamin N. Cardozo School of Law in New York.
From June 2008 through March 24, 2011 Kadden was employed by VisuaLex as a Litigation Graphics Consultant (“graphics consultant”).
2. VisuaLex, LLC
VisuaLex is a New York limited liability company, with its principal place of business at 225 Ashford Avenue, Dobbs Ferry, New York 10522, in Westchester County.
VisuaLex was started in 1999 as a “litigation support company” by Lillian Romano, president and graphics consultant, Brian Fennessey, vice president and creative director, and investment partner Joseph Romano.
B. The Role of Litigation Graphics Consultant at VisuaLex 1. Primary Duties
Lillian Romano testified that the “primary job of the consultants [at VisuaLex] is to review and analyze case materials and to create and develop the most effective visual strategy to help the trial teams communicate their case to the trier of fact.”
VisuaLex’s job description for graphics consultants (the “Job Description”) listed as “primary responsibilities”: (1) “[r]ead case materials and work with attorneys to identify key case concepts;” (2) “[cjollaborate with our team of designers and animators to execute high quality, error-free graphics;” (3) “[s]chedule trial technicians and courtroom equipment;” and (4) “[project management and client interaction.”
At least two consultants are assigned to every case, one as the “lead consultant” and one as the “back up consultant.”
Kadden was identified as the lead on “a couple” cases.
When VisuaLex gets a new job, the graphics consultants begin by reading background materials, for example, expert reports, pleadings, depositions and medical records.
Next, the consultant obtains all necessary information from the client to create the exhibit and fills out a “chart type form” identifying the case number and “when you think its going to be used.”
Once the consultant has the materials for the graphic from the client, the next step is a briefing session with the art director to explain “not only the overall strategy ... of the case, but how this exhibit fits in and what the takeaway from this exhibit needs to be” and “where - the
After the briefing with the art director, “the art director goes back and either he creates the layout or he directs the designers to create the layout the way he wants it to be created.”
According to Kadden, the exhibit “would [then] go to whoever was serving as the backup ... who would then review it, write in any changes ... [t]hen it would eventually work its way up to the lead, who would then decide, ... do I want to make those changes or not.”
Kadden explained that “as the second or the backup, [she] would come in more on the revision phase of things” with most of her time “spent on the proofing phase.”
Romano explained that when consultants proof, they should be “evaluating the layout for the takeaway.”
Kadden also proofed PowerPoint presentations, which the production manager created once the graphics were finalized so that the client could view the work.
When business was slow, Kadden sent out “some [marketing] letters and brochures” at Romano’s request.
Graphics consultants were required to be in the office “Monday through Friday from 9 a.m. to 6 p.m. for standard work hours” and “any hours outside of that that were required by client work.”
2. Qualifications of Graphic Consultants at VisuaLex
VisuaLex’s Job Description listed “Qualifications” of a graphics consultant as, inter alia: (1) “[excellent critical thinking, project management and problem solving skills; (2) [s]trong communication/interpersonal skills; (3) [w]ell-organized, self-starter, able to meet tight deadlines; (4) [attention to detail, strong editing and proofing abilities; (5) [graduate degree preferred (e.g. social science, law, etc.); (6) [willingness to work frequent overtime/occasional travel. Weekend work during peak periods.”
The typical educational background of a graphics consultant is “[a] postgraduate degree, social sciences, or a JD. Any postgraduate degree, really.”
Since its inception, VisuaLex has employed nine graphic consultants: Lillian Romano, Ted Gipstein, Theodore Walker, Marilyn Wesel, Kim Nawyn, Nicole Matthiesen, Adina Kadden, Heather Moran and David Mykel.
Of the nine graphics consultants, six of them, including Kadden, had some prior experience in the litigation graphics consulting field.
C. Kadden’s Compensation at Visua-Lex
1. Compensation June 2008 Through March 2009
In 2008, VisuaLex began looking for a new graphics consultant. It “retained a few headhunters” and posted on the American Society of Trial Consultants (“ASTC”) website and Monster.com.
After interviewing with Romano, on May 16, 2008, Kadden received a letter offering her the position of Graphics Consultant at VisuaLex (the “Offer Letter”) starting June 2, 2008.
2. VisuaLex Eliminates Kadden’s Overtime Compensation
In March 2009, due to the economic downturn VisuaLex decided to suspend paying overtime incentive compensation to professional staff.
Kadden was informed of the decision to suspend overtime payment in a letter and in person by Romano.
III. APPLICABLE LAW
A. FLSA Exemptions
Subject to certain exemptions, the FLSA mandates overtime pay for employees for every hour per week worked over forty, in the form of one and one-half times their hourly rate.
The Supreme Court has cautioned that the FLSA exemptions are to be “construed narrowly against the employer seeking to assert them,”
1. Creative Professional Exemption
In order to establish that Kadden is exempt as a creative professional, Visua-Lex must prove that Kadden’s primary duty is work “[Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor”
In order to establish that Kadden is exempt as a “learned professional,” Visua-Lex must prove that her “primary duty” is work requiring (1) “advanced knowledge” (2) “in a field of science or learning” (3) that is “customarily acquired by a prolonged course of specialized intellectual instruction.”
Work requiring advanced knowledge must be “predominantly intellectual in character” and include “the consistent exercise of discretion and judgment, as distinguished from performance of routine mental ... work.”
The exemption is restricted to professions “where specialized academic training is a standard prerequisite for entrance.”
Although the Second Circuit has not opined on the meaning of “specialized academic training” other circuits have made clear that “positions that do not require a particular course of intellectual instruction directly related to the employee’s professional duties do not come within the ‘learned professional’ exemption.”
In order to establish that Kadden is exempt as an administrative employee, VisuaLex must prove that Kadden’s primary duty (1) “is the performance of office or non-manual work directly related to the management or general operations of [VisuaLex] or [VisuaLex’s] customers” and (2) “includes the exercise of discretion and independent judgment with respect to matters of significance.”
To meet the first requirement, “an employee must perform work directly related to assisting with the running or servicing of the business” as distinguished from the production or sales side of the business.
The second requirement — that the employee exercise “discretion and independent judgment” — generally involves “the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.”
“ ‘[Discretion and independent judgment’ does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.”
4. Combination Exemption
Additionally, “[ejmployees who perform a combination of exempt duties as set forth in the regulations ... may qualify for exemption.”
B. Damages
1. Proper Measure of Overtime Damages
The FLSA requires employers to pay non-exempt employees one and one-half times their hourly pay for all hours worked over forty in any given week.
This doctrine applies where an employee is employed on a salary basis, has “hours of work which fluctuate from week to week,” and the salary is paid “pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many.”
2. Liquidated Damages
a. FLSA
Under the FLSA, an employer who violates the overtime requirements is generally required to pay the employee “unpaid overtime compensation” as well-as “an additional equal amount as liquidated damages.”
b. NYLL
Under the NYLL, employees improperly denied overtime compensation may receive liquidated damages of twenty-five percent of the total amount of wages due.
III. CONCLUSIONS OF LAW
A. FLSA Exemptions
This is a difficult case. Kadden’s academic qualifications, her job title of “Litigation Graphics Consultant,” and her yearly salary of $75,000 make her a less than obvious candidate for the protection of the
But the binding regulations make clear that neither title
1. Kadden Was Not an Exempt Creative Professional
VisuaLex argues that Kadden’s primary duty was “to review and analyze case materials to conceptually create and develop the most effective visual strategy to help trial teams communicate their case to the trier of fact,” which requires “invention, imagination and analysis ... at every stage of the process.”
VisuaLex’s own witnesses testified that the job of a graphics consultant wás to convey information about a case in an informative, easily understandable way, to triers of fact. The First Circuit held local journalists non-exempt where “the focus of their writing was ... ‘to tell someone who wanted to know what happened ... in a quick and informative and understandable way’ ” — work that “ ‘depends primarily on intelligence, diligence, and accuracy.’”
2. Kadden Was Not an Exempt Learned Professional
VisuaLex argues that Kadden was an exempt learned professional because “the decision was made to hire her because of, among other things, her advanced knowledge in the field of law, her legal degree.”
Although Romano testified that in the litigation graphics consulting industry a graduate degree was generally required, VisuaLex explicitly stated that a degree was preferred, not required.
To qualify for the learned professional. exemption, the educational requirements must not only be advanced, but also specialized.
There is no evidence that Kadden was hired to fill a different role than other graphics consultants — one that required use of her law degree.
The lack of a required course of specialized training for graphics consultants and the fact that the common thread among the VisuaLex graphics consultants was their experience in litigation support, rather than their particular educational backgrounds, removes the position from the learned professional exemption. Because I find that the education requirement is not met, it is not necessary to address the question of whether the work required “the consistent exercise of discretion and judgment, as distinguished from performance of routine mental work.”
3. Kadden Was Not an Exempt Administrative Employee
VisuaLex argues that Kadden was an administrative employee because she “assisted with the servicing of the business of VisuaLex’s clients” and “[w]ork that directly relates to the management or general business operations of the employer’s clients is work that directly relates to assisting with the running or servicing of a business.”
The distinction between administrative and production work “is not a clear one” when it comes to non-manufacturing positions.
To the extent that Kadden supervised other employees, she did so in conjunction with executing that work herself in a non-managerial capacity — such as ed
- The work Kadden did 'for VisuaLex’s client law firms also related to the “very product or service that [the clients] offer[ed] to the public,”
It is true that an employee whose primary duties were maintaining client relations, securing business, and assisting with VisuaLex’s marketing, or that of Visua-Lex’s clients, would qualify as an exempt administrative employee. It is also clear that some graphics consultants at Visua-Lex — specifically Romano and David Mykel both of whom earned salaries well above $75,000, had as a primary duty bringing in business, and maintaining client relations.
Even if Kadden was performing duties that qualified as administrative, VisuaLex failed' to 'establish that Kadden exercised “discretion and independent judgment” in “matters of significance.”
no evidence in the record that the [employees] have any authority to formulate, affect, interpret, or implement [employer’s] management policies or its operating practices, or that they are in*542 volved in planning [employer’s] long-term or short-term business objectives, or that they carry out major assignments in conducting the operations of [the employer’s] business, or that they have any authority to commit [the employer] in matters that have significant financial impact.155
There is no evidence that Kadden had any such authority with respect to the administration of VisuaLex. Romano was solely responsible for personnel decisions, procuring and maintaining client relationships, and overseeing the production of litigation presentations. Her role went well beyond micro-managing — all significant decisions with regard to the company were made in the first instance by Romano.
4. Kadden Is Not Exempt Under the Combination Exemption
Because I did not find that any of Kadden’s duties fell under the creative or learned professional exemptions, she cannot be exempt under the combination exemption, even if some of her duties were administrative. Given my finding that none of the proposed exemptions apply, I proceed to the damages issues addressed at trial.
B. Damages Issues
1. Proper Measure of Overtime Damages
The standard measure of overtime compensation under the FLSA is one and one-half times the employee’s hourly rate. The testimony establishes that VisuaLex graphics consultants were expected to be in the office from nine to six five days a week. Kadden may have understood, when VisuaLex informed her that she would no longer receive overtime, that her $75,000 salary would not change regardless of how many hours she worked. However, in light of the original agreement that Kadden would be paid a base salary of $75,000 plus overtime and the unilateral nature of the decision to change the compensation, it cannot be said that there was a “clear mutual understanding.” Given the expectation that graphics consultants would work at least forty hours a week and the initial agreement for overtime, I do not find the fluctuating workweek doctrine applicable here.
2. Liquidated Damages
Testimony clearly establishes that Romano went to considerable lengths to ascertain whether graphics consultants were exempt from the FLSA overtime requirements. In light of her genuinely held belief in what the primary duties of a graphics consultant were, notwithstanding the fact that several graphics consultants at VisuaLex did not ultimately perform those duties, I find that the classification was in good faith and no liquidated damages are warranted.
IV. CONCLUSION
For the foregoing reasons, Kadden was not exempt from the FLSA’s overtime requirements, and VisuaLex must compensate her at a rate of one and one-half times her hourly rate for all overtime hours worked that fall within the relevant statutes of limitations.
SO ORDERED.
. See 29 U.S.C. § 201 et seq.; NYLL §§ 198(l-a), 663. The parties agree that the NYLL claims should be analyzed under the same standards as the FLSA claims. See Plaintiffs Pretrial Memorandum of Law ("PL Mem.”) at 14; Defendant’s Trial Memorandum of Law (“Def. Mem.”) at 2. Accord McLean v. Garage Mgmt. Corp., 819 F.Supp.2d 332, 337 (S.D.N.Y.2011).
. See Complaint at 5; Pl. Mem. at 16-23.
. See Answer at 5; Def. Mem. at 2.
. See Answer at 5-6; Def. Mem. at 14-16. VisüaLex also argues that if Kadden is found to bfe. non-exempt, VisuaLex is entitled to an offset for all money paid to Kadden based on the understanding that she was an exempt employee. See Answer at 5; Def. Mem. at 15. I reserved the damages question pending resolution of liability and thus do not address the question of offsets here. See 8/15/12 Trial Transcript ("Trial Tr.”) at 343.
.Counsel were directed only to submit annotated versions of the pre trial proposed findings of fact and conclusions of law citing to the trial transcript and exhibits, and were admonished not to make additional legal arguments. See 8/14/12 Trial Tr. at 342; 8/15/12 Trial Tr. at 420. Defense counsel’s post-trial submission violated this clear instruction.
. See Defendant’s Exhibit ("DX”) C (5/8/08 Email from The Cowen Group to Lillian Romano attaching Adina Kadden’s resume).
. See 8/13/12 Trial Tr. at 188 (Kadden).
. See Complaint ¶ 3; Answer ¶ 3.
. See 8/13/12 Trial Tr. at 30:17-25 (Romano).
. See Answer ¶ 6.
. See 8/14/12 Trial Tr. at 204-05; Plaintiff's Exhibit ("PX”) 1 (Def's Admissions) ¶¶ 29, 30; PX 3 (Offer Letter).
. See Answer ¶ 16.
. 8/13/12 Trial Tr. at 40:20-23 (Romano).
. Plaintiff's Trial Exhibit ("PX") 2 (Job Advertisement/Description). See also 8/13/12 Trial Tr. at 112-116 (Romano) (describing role of graphics consultant to include reading background, communicating with clients, proofing and editing, working with production staff).
. See 8/13/12 Trial Tr. at 99:6-15 (Romano); 8/14/12 Trial Tr. at 199-204 (Kadden); id. at 285 (Moran). Romano also referred to this position as the "primary contact,” which identifies for the attorneys "who to ask for when they call the office if they need to get something done.” 8/13/12 Trial Tr. at 99:3-5 (Romano).
. - 8/13/12 Trial Tr. at 99:11-15 (Romano).
. Id. at, 101:20-25 (Romano).
. 8/14/12 Trial Tr. at 204:1-5 (Kadden). On the “Sobieski” case, for example, Romano was initially the lead and had the communications with clients, to which Kadden was not a party. See id. at 223:21-224:7 (discussing DX J (Email from client to Romano on Sobieski matter, Excerpt 1 at 1103-05)). Kadden testified that an email communication for the Sobieski case in which “the trial team had asked for a revision, and I sent an e-mail responding that I didn’t recommend that we make that revision” was not the role she filled on most cases-rather the lead consultant generally filled that role. See id. at 222:21-223:5.
. Id. at 174:9-10 (Romano). See also id. at 200:10-18 (Kadden) (“[T]he lead consultant, usually Ms. Romano, would attend meetings face to face with the client,” take "phone calls with the client” and "draft out and sketch out what she thought the strategy was going to be.”).
. See id. at 338:20-21 (Daignault).
. See DX J (E-mail from client to Romano on Sobieski matter, where Kadden was not included).
. See 8/13/12 Trial Tr. at 71:11-20, 112:5-7 (Romano).
. 8/14/12 Trial Tr. at 186:3-13.
. 8/13/12 Trial Tr. at 112:9-113:10.
. Id. at 113:12-21.
. 8/14/12 Trial Tr. at 255:10-14 (Kadden). See also id. at 232:18-19.
. Id. at 254:2-8 ("It could have been one of those transcript [exhibits] ... where there is not a lot of conceptualization on my part”).
. 8/13/12 Trial Tr. at 114:23-115:2 (Romano). Accord 8/14/12 Trial Tr. at 200:17-18 (Kadden) ("[Romano] would have a briefing meeting with the art director.”). See also 8/13/12 Trial Tr. at 113:15-21 (Romano) (The information sent over by the client and the fact "that the consultant feels the best way to portray this is kind of a flow chart with the dates up at the top, names of the companies at the next level” is communicated to the studio.).
. See 8/14/12 Trial Tr. at 200:18-19 (Kadden).
. 8/13/12 Trial Tr. at 115:5-7 (Romano). See also id. at 96:13-15 (“The graphic designers actually just create the layout in one of the software programs.”).
. Id. at 116:1.
. Id. at 116:8-11.
. 8/14/12 Trial Tr. at 201:2-9 (Kadden).
. Id. at 203:11-14.
. Id. at 284:8-11 (Moran).
. See id. at 284:25-285:3.
. 8/13/12 Trial Tr. at 116:17-19 (Romano). Accord 8/15/12 Trial Tr. at 353:14-22 (Mykel) (Proofing involves "making sure [the graphics] adhere to the themes that we developed by reviewing the case materials, ensuring that the message we are trying to convey is coming through in a persuasive manner ... making sure the content is accurate ... ensuring that everything that we put into that piece of work carries the quality and integrity that I intended when I first created it”).
. 8/13/12 Trial Tr. at 116:23-117:1 (Romano).
. Id. at 118:16-17.
. Id. at 122:14-17.
. See id. at 201:15-18, 203:14-18.
. See id. at 237:10-22, 246:7-10. Project management was billed to clients at a rate of $200 rather than $225. David Mykel testified that he never used this billing code. 8/15/12 Trial Tr. at 368:12-13 (Mykel).
. 8/14/12 Trial Tr. at 203:18-21 (Kadden).
. Id. at 307:25-308:1.
. Id. at 213:16-17!
. Id. at 213:18-20.
. See id. at 214:9-14.
. Id. at 208:19-22. See also 8/13/12 Trial Tr. at 61:17-62:4 (Romano) (Graphic consultants never "just work[ed] nights.” Rather, the work "starts at 9 and ... it can go all night certainly, but we certainly don't sit there from 9 to 6 and do nothing.”). See also 8/14/12 Trial Tr. at 283:17-20 (Moran) ("[W]hen there wasn't a job going on there was a lot of downtime. And then when there was a job going on it was basically at the beck and call of the attorneys, nights, weekends, whatever was needed.”); id. at 198:20-24 (Kadden) ("That’s not saying we didn’t do work from 9 to 6. We did. It often required extensive overtime. I was certainly there until 10 p.m., midnight. I saw sunrise on the way home sometimes. I worked extensively on Saturdays and Sundays as well.”).
. PX 16 (Kadden Billable Hours (by Project) (FRE 1006)).
. Plaintiff’s Trial Exhibit (“PX”) 2 (Job Advertisement/Description).
. 8/13/12 Trial Tr. at 41:3-4 (Romano). Romano testified that she was unaware of any individuals who worked as graphics consultants who did not have an advanced degree and that it was required at the other places she worked. See id. at 43:4-5. See also 8/15/12 Trial Tr. at 315:23-25 (Kadden) (All graphics consultants at Doar had advanced degrees "in something”).
. 8/13/12 Trial Tr. at 164:19-23 (Romano).
. Id. at 41:24-42:3.
. See id. at 45:12-15.
. See DX AA (Ted Gipstein Resume), DX Y (Theodore Walker Resume), DX X (Marilyn Wesel Resume), DX C (Adina Kadden Resume).
. See 8/13/12 Trial Tr. at 42:10-15 (Romano); DX W (Kim Nawyn Resume); DX Y (Nicole Matthiesen Resume); 8/15/12 Trial Tr. at 348:22-23 (Mykel).
. See Plaintiff’s Trial Exhibit ("PX”) 14 (Heather Moran’s Resume).
. Lillian Romano had nine years of experience as a graphics consultant for litigation support firms prior to starting VisuaLex. See 8/13/12 Trial Tr. at 38:15-20 (Romano). Kim Nawyn, Nicole Matthiesen, Ted Gipstein and David Mykel also had prior experience as litigation graphics consultants. See DX W; DX Z; DX AA; 8/15/12 Trial Tr. at 349:19-23 (Mykel).
. DX C (5/8/12 Letter from Járed Coseglia of Cowen Group to Lillian Romano). Kadden testified that her job at Doar was "very different. At Doar I had much more close contact with the trial team working face to face with them" and worked "collaboratively with the graphic designers themselves that didn't have to go through like an art director" and traveled and “attended the trials.” 8/14/12 Trial Tr. at 191:25-22:7 (Kadden).
. Marilyn Wesel had experience in graphic design, and was general counsel for a corporation and a magistrate in probate court. See DX X (Marilyn Wesel’s Resume). Theodore Walker had over ten years of experience as an attorney. See DX Y (Theodore Walker’s Resume). Heather Moran was a “litigation paralegal for quite a few years" and a "legal assistant prior to that.” 8/14/12 Trial Tr. at 276:24-277:2 (Moran).
. 8/13/12 Trial Tr. at 56:12-13 (Romano). The ASTC is a professional association in which "trial consultants, jury consultants, and graphics consultants participate.” Id. at 55:15-16.
. DX C (5/8/12 Letter from Jared Coseglia of Cowen Group to Lillian Romano). The Cow-en Group received a "finding fee” of $18,750 for its role in placing Kadden at VisuaLex. See DX E (Cowen Group Invoice).
. DX C.
. See PX 3 (6/2/08 Offer Letter to Adina Kadden).
. Id.
. See id.
. Id.
. See 8/13/12 Trial Tr. at 137:21-22 (Romano).
.Id. at 138:6-142:4.
. See zd. at 143:23-144:3.
. Id. at 144:6-12.
. See 8/14/12 Trial Tr. at 321:19-20 (Kadden).
. This Court has jurisdiction over plaintiff's FLSA claims under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. It has jurisdiction over the state law claims' under 28 U.S.C. § 1367(a).
. See 29 U.S.C. § 207(a)(1). It is undisputed that Kadden, if not otherwise exempt, would be entitled to overtime payment.
. Id. § 213(a)(1). The statute delegates rule-making authority to the Secretary to define such terms by regulation. See id. Those regulations “have the force of law.” Ramos v. Baldor Specialty Foods, 687 F.3d 554, 559 (2d Cir.2012) (quotation omitted).
. 29 C.F.R. § 541.300.
. Id. § 541.200.
. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). Accord Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009).
. See Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966); see also Young, 586 F.3d at 204.
. 29 C.F.R. § 541.2.
. Id.
. Kadden earned a salary above the per week minimum under the FLSA and NYLL and her salary was never decreased, regardless of quality, quantity or days worked, as required by the regulations. See id. §§ 541.300(a)(1), (b); 541.200(a)(1), (b); NY Comp.Codes R. & Regs. Tit. 12, IIB, Part 142. Kadden performed non-manual labor. See 29 C.F.R. § 541.3(a). The fact that Kadden was initially paid overtime does not waive the exemption. See id. § 541.604(a).
. Id. § 541.700(a). "‘[PJrimary duty'means the principal, ... or most important duty that the employee performs [and] must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.” Id. "Factors to consider ... include, .:. the relative importance of the exempt duties ...; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” Id.
. Id. § 541.300(a)(2)(h).
. Id. § 541.302(c).
. Id. § 541.302(b).
. Id. § 541.302(c)
. Id. § 541.301(a); see also id. § 541.300(a)(2)(H).
. Id. § 541.301(b).
. Id.
. Id. § 541.301(c). "The areas in which professional exemptions may be available are expandingf ][a]s knowledge is developed, academic training is broadened, and degrees are offered in new and diverse fields.” Id. § 541.302(e)(2).
. Id. § 541.301(d).
. Id.
. Young, 586 F.3d at 206 (emphasis in original). But see id. ("[C]ustomarily” in this context makes the exemption applicable to the rare individual who, unlike the vast majority of others in the profession, lacks the formal educational training and degree.) (citing 29 C.F.R. § 541.301(d)).
. Solis v. Washington, 656 F.3d 1079, 1084 (9th Cir.2011).
.See Fife v. Harmon, 171 F.3d 1173, 1177 (8th Cir.1999) (cited approvingly in Young, 586 F.3d at 206) ("Advanced knowledge from a general academic education and from [experience]” rather than from "a prolonged course of specialized intellectual instruction” does not qualify for the exemption.); Dybach v. State of Florida Dept, of Corrections, 942 F.2d 1562, 1565-66 (11th Cir.1991) (requirement of a bachelor’s degree in any field, including "nuclear physics” or “basketweaving” did not qualify as specialized intellectual instruction). Although these cases involved bachelor’s rather than master’s degrees, nothing in the opinions or the regulations suggest that where a master's degree is involved the specificity requirement evaporates. Accord Levine v. Unity Health System, 847 F.Supp.2d 507, 512 (W.D.N.Y.2012) (Requirement of "a . master’s degree in one of four specific areas relevant to the primary duties of a [Primary Therapist]” plus "licensure in a designated area, each of which requires the completion of its own particularized course of study,” ”satisf[ied] the 'particularized course of study’ requirement.”).
. 29 C.F.R. § 541.200(a)(2), (3).
. Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560, 573 (7th Cir.2012).
. 29 C.F.R. § 541.201(b).
. Id.
. Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 532 (2d Cir.2009).
. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 9 (1st Cir.1997) (citing Reich v. New York, 3 F.3d 581, 587-89 (2d Cir.1993) (police investigators conduct or "produce” criminal investigations), overruled by implication on other grounds by Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)).
. 29 C.F.R. § 541.201(c).
. Id. § 541.202(a). “Factors to consider ... include, but are not limited to: whether the employee: (1) has authority to formulate, affect, interpret, or implement management policies or operating practices; (2) carries out major assignments in conducting the operations of the business; (3) performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business; (4) has authority to commit the employer in matters that have significant financial impact; (5) has authority to waive or deviate from established policies and procedures without prior approval; (6) has authority to negotiate and bind the company on significant matters; (7) provides consultation or expert advice to management; (8) is involved in planning long- or short-term business objectives; (9) investigates and resolves matters of significance on behalf of management; and (10) represents the company in handling complaints, arbitrating disputes or resolving grievances." Id. § 541.202(b).
.Id. § 541.202(a).
. Id. § 541.202(e).
. Id. § 541.202(c). Accord Coleman-Edwards v. Simpson, 330 Fed.Appx. 218, 220 (2d Cir.2009) (The fact that someone else "possessed general supervisory authority” over the employee "does not mean [she] lacked discretion to make decisions in her own right....”).
. 29 C.F.R. § 541.202(c).
. Id. § 541.708.
. IntraComm, Inc. v. Bajaj, 492 F.3d 285, 294 (4th Cir.2007) (discussing an amicus brief submitted by the Secretary of Labor).
. Id. at 293-94.
. 29 U.S.C. § 207(a)(1).
. 29 C.F.R. § 778.114(a). See also Retroactive Payment of Overtime and the Fluctuating Workweek Method of Payment, Wage and Hour Opinion Letter, FLSA 2009-3 (Dep’t of Labor Jan. 14, 2009) ("because the fixed salary covered whatever hours the employees were called upon to work in a workweek ... and the employees received and accepted the salary knowing that it covered whatever hours they worked,” a retroactive payment of overtime using the fifty percent multiplier conforms with FLSA requirements.).
. 29 C.F.R. § 778.114(a).
. O’Brien v. Town of Agawam, 350 F.3d 279, 288 (1st Cir.2003) (citing 29 C.F.R. § 778.114(a), (c)). Accord Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st Cir.1999) (“The parties must [] have reached a ‘clear mutual understanding’ that while the employee’s hours may vary, his or her base salary will not.’’).
. O’Brien, 350 F.3d at 288.
. 29 U.S.C. § 216(b).
. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir.1999).
. 29 U.S.C. § 260.
. Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 150 (2d Cir.2008) (quotation omitted).
. Id.
. See NYLL § 198(l-a).
. See Kuebel v. Black & Decker, Inc., 643 F.3d 352, 366 (2d Cir.2011). The Second Circuit previously explained that, unlike the FLSA, “liquidated damages under the Labor Law 'constitute a penalty’ to deter an employer’s willful withholding of wages due.” Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 265 (2d Cir.1999) (quoting Carter v. Frito-Lay, Inc., 74 A.D.2d 550, 425 N.Y.S.2d 115, 116 (1st Dep't 1980), aff'd, 52 N.Y.2d 994, 438 N.Y.S.2d 80, 419 N.E.2d 1079 (1981)). In contrast, the prejudgment interest authorized under the NYLL has the purpose of “compensating] a plaintiff for the loss of use of money.” Id.
. NYLL § 198(l-a).
. Christopher, el al. v. SmithKline Beecham Corp., - U.S.-, 132 S.Ct. 2156, 2173, 183 L.Ed.2d 153 (2012).
. See 29 C.F.R. § 541.2 (job title alone is insufficient).
. Notwithstanding the Supreme Court's statement in Christopher, an employee receiving $75,000 may be covered under the FLSA’s overtime requirements. In fact, the regulations do not anticipate any relaxation of the standards for establishing exempt status until the salary rises above $100,000, at which point the employee is deemed a "highly compensated employee,” which "eliminat[es] the need for a detailed analysis of the employee's job duties." 29 C.F.R. § 541.601(a), (c). Even then the employee is not automatically exempt — the employer still must show that the "employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee.” Id.
. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986).
. One of many arguments reiterated in defendant’s post-trial submission is that the "legacy” of finding Kadden non-exempt will be "an onslaught of litigations” harming the "entire professional industry.” Defendant's Post-Trial Brief at 38. At trial defense counsel explained that VisuaLex could not settle the case because "[tjhis is an entire industry that qualifies graphic consultants as exempt” and VisuaLex could not leave this "unanswered question.” 8/13/12 Trial Tr. at 26. To the extent that this intensely fact-bound opinion has any impact beyond this case, counsel must recognize that courts are not authorized to consider that a certain employee may have been a poor test case for an industry when applying the FLSA’s narrowly drawn exemptions, and the decision to litigate on behalf of an entire industry, rather than resolve small labor disputes out of court, carries with it risks beyond immediate financial • loss.
. Def. Mem. at 4.
. 29 C.F.R. § 541.303.
. PX 2 (Job Advertisement/Description) (emphasis in original).
. Id.
. Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1075 (1st Cir.1995) (quoting regulations). Although the Second Circuit "parted ways” with Reich in Freeman v. National Broadcasting Co., 80 F.3d 78, 84 — 85 (2d Cir.1996) it did so based on the distinction between the “long” and "short” tests for exemptions, which were eliminated by the 2004 amendments. It also distinguished between "small town reporters” and “major news organizations” where "[djizzying technological advances and sophisticated demands of the news consumer” resulted in use of a "variety of combined audio and visual presentations in which creativity is at a premium.” Id. at 85-86. Kadden’s work was akin to that discussed in Reich, not Freeman.
. See Sherwood v. Washington Post, 871 F.Supp. 1471, 1482 (D.D.C.1994).
. PL Mem. at 5-6.
. See29C.F.R. § 541.301(a).
. See 8/13/12 Trial Tr. at 41:3-4 (Romano); PX 2 (Job Advertisement/Description).
. See 29 C.F.R. §, 541.301(e)(7) ("Paralegals and legal assistants generally do not qualify as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field ....”) (emphasis added).
. Fife, 171 F.3d at 1177 (cited approvingly in Young, 586 F.3d at 206)
. Cf. 29 C.F.R. § 541.301(e)(7) (“the learned professional exemption is available for paralegals who possess advanced specialized degrees in other professional fields and apply advanced knowledge in that field in the performance of their duties. For example, if a law firm hires an engineer as a paralegal ____to provide expert advice on product liability cases or to assist on patent matters, that engineer would qualify for exemption.”).
. Id. § 541.301(b). See also Vela v. City of Houston, 276 F.3d 659, 675 (5th Cir.2001) (both the education prong and the discretion prong must be satisfied in order for the learned professional exemption to apply) (cited approvingly in Young, 586 F.3d at 206).
. Def. Mem. at 7.
. Davis, 587 F.3d at 532.
. John Alden Life Ins. Co., 126 F.3d at 9.
. Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 904-05 (3d Cir.1991).
. Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 829-30 (10th Cir.2012) (quoting Brief for Secretary of Labor as Amicus Curiae at 5, Mullins v. City of New York, 653 F.3d 104 (2d Cir.2011) (per curiam)). Accord Mullins, 653 F.3d at 115 ("the Secretary’s reasoned justification is that such activities, when performed ... in the course of their front-line duties, do not involve the ‘management of the enterprise in which the employee is employed,’ and therefore should not be deemed ‘management.’ ’’) (quoting 29 C.F.R. § 541.3(b)(2)). The discussion of management applies equally to § 541.3(b)(3), which addresses the administrative exemption.
. Maestas, 664 F.3d at 829. Accord-Reich v. New York, 3 F.3d at 587-89 (holding that police investigators who supervised investigations performed by state troopers while performing their own investigations were nonadministrative “because ‘the primary function of the Investigators ... is to conduct— or ‘produce’ — its criminal investigations.’ ”).
. John Alden Life Ins. Co., 126 F.3d at 9.
. Def. Mem. at 7.
. Id.
. Mykel testified that his base salary was $100,000 with the possibility of a bonus based on how much business he brought in. See 8/15/12 Trial Tr. at 361:9-362:1.
. Plaintiff's Post-Trial Brief at 28. Accord Young, 586 F,3d at 208 (holding that an employee hired into a generally exempt position but who did the work of a non-exempt employee would not be exempt under the FLSA).
. 29 C.F.R. § 541.200(a).
. In re Novartis Wage and Hour Litig., 611 F.3d 141, 156 (2d Cir.2010) abrogated on other grounds by Christopher, 132 S.Ct. 2156.
. Given my finding that VisuaLex’s misclassification was made in good faith, the statute of limitations under the FLSA is two years. See 29 U.S.C. § 216(b). The limitations period under New York Labor Law is six years. See NYLL § 198(3); Dragone v. Bob Bruno Excavating, Inc., 45 A.D.3d 1238, 847 N.Y.S.2d 251, 253 (3d Dep't 2007) (six-year limitations period, not a three-year period, applied to claim for unpaid overtime wages under New York Labor Law).