LinkedIn profile did not prove “highly compensated” status

An employer was denied summary judgment on the question of whether an employee qualified as a highly-compensated employee exempt from the FLSA’s overtime provisions, ruled a federal court in Alabama. While the parties agreed that he met the first and third prongs of the test for a highly compensated employee, the court found that questions remained on whether he performed exempt duties. Moreover, the court observed, the employee’s resume and LinkedIn profile were not dispositive on the issue, and should not be considered absent other supporting evidence.

The employee worked for the employer for approximately five years prior to bringing a claim under the FLSA for alleged overtime violations. Specifically, he claimed that his employer failed to pay him overtime at the appropriate rate for all hours worked in excess of 40 during each workweek between August 2014 and January 2015. The employer denied that it violated FLSA and countered by asserting that the employee was exempt from overtime because he was a highly compensated employee. Before the court was the employer’s motion for summary judgment.

The employer is a computer software company that provides billing and customer management services for communications service providers. The employee worked as a project manager. According to the employer, the employee’s duties included generating reports for his supervisor, responding to email correspondence, monitoring and coordinating team projects, providing end to end project management, managing team workload, providing overall delivery of multiple projects, and coordinating, tracking, and reporting IT releases. However, the employee admits only that he generated reports for his supervisor and responded to email correspondence. At any rate, his work consisted entirely of non-manual office work.

LinkedIn profile

As part of its summary judgment submission, the employer submitted a printout of the employee’s LinkedIn profile. That profile suggested that the employee’s duties included all of the duties listed by the employer, and also that he directly managed seven employees and two applications. Additionally, a copy of the employee’s resume indicated that his primary duties were the coordination, tracking, and reporting of AT&T IT wide releases, and delivery of multiple project releases. The employee earned more than $100,000 in salary in 2014 and would have done so again in 2015 had he continued his employment with the employer.

Highly-compensated employee

An FLSA plaintiff is classified as a highly-compensated employee if (1) he earns a total annual income of $100,000 and at least $455 per week, (2) customarily and regularly performs any one of the exempt duties or responsibilities of an executive, administrative or professional employee, and (3) primarily performs office or non-manual work.

Here, the parties agreed that the employee earned more than $100,000 total annual income and that he earned more than $455 per week. Further, it was undisputed that his duties consisted primarily of office or non-manual work. Thus, the first and third prongs of the three-part exemption test were met. However, the parties disagreed as to the second element—whether the employee performed any one of the exempt duties or responsibilities of an executive, administrative, or professional employee as listed in the FLSA.

Regardless of job title, to qualify for the highly-compensated employee exemption, an employee must have actually performed one of the exempt executive, administrative, or professional duties customarily and regularly. “The phrase ‘customarily and regularly’ means a frequency that must be greater than occasional but which, of course, may be less than constant.” Specifically, it means “work normally and recurrently performed every workweek,” but not “isolated or one-time tasks.”

In support of its motion for summary judgment, the employer provided the employee’s resume and LinkedIn profile. However, the court observed that the Fifth and Sixth Circuits have indicated that a resume (and similarly a LinkedIn profile) is not dispositive and should not be considered absent other supporting evidence. Looking to the record, the court determined that a genuine dispute of fact existed about whether the employee performed exempt duties.

Exempt duties

Additionally, in support of its motion, the employer offered evidence that the employee was responsible for: “monitoring and coordinating team projects, providing end to end project management, managing team workload, providing overall delivery of multiple projects, and coordinating, tacking, and reporting IT releases.” While those jobs duties appeared to be of the type an IT employee making over $100,000 might perform, the employee denied that he performed such duties.

Although the employer presented evidence that the employee directly managed seven employees, he filed an affidavit denying that fact. Consequently, because it was not for the court to assess the credibility of the employee’s denial at the summary judgment stage, it concluded that the employer had not met its burden to establish that the employee customarily and regularly performed exempt executive duties or responsibilities.

Similarly, because the employee denied that he engaged in such tasks as monitoring and coordinating team projects as well as managing team workload, the court again concluded that the employer had not met its burden to establish that he customarily and regularly conducted sufficient administrative duties. A similar result was obtained with respect to the court’s analysis of the professional exemption based on the employer’s contention that the employee engaged in “work requiring advanced knowledge means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work.” Accordingly, this issue presented a disputed issue of fact for a jury to decide. (Trammell v. Amdocs, Inc., NDAla., 166 LC ¶34,460.)

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