Whether office workers are entitled to overtime pay when they work over 40 hours in a work week is governed under federal law by what are called the “white collar exemptions.” Of those exemptions, the Administrative exemption is the one that could apply to an executive assistant – but it rarely does.
However, courts have recognized certain situations where a particular executive assistant has the requisite independent judgement and discretion to be exempt from the requirement that he or she received overtime pay.
In Altemus v. Federal Realty Investment Trust, (4th Cir., 2012), the sole executive assistant to the CEO was found to satisfy the requirements for exemption and thus was not entitled to overtime pay.
That Executive Assistant supported the CEO of a 400+ employee company. Her regular tasks included supporting the CEO in both his corporate position and in his personal obligations, including the multiple boards on which he sat. She handled confidential information, prioritized calls and correspondence, coordinated trustee meetings, and coordinated the CEO’s schedule and travel. This CEO was out of the office frequently, and his Executive Assistant was given discretion to handle certain matters in his absence, including his calls and correspondence. In her performance review, the CEO noted that his assistant was his “right arm for organizing and administering all aspects of the business.” The more she learned her job, the more leeway he gave her to make her own decisions. When he was away, she worked independently without the need for constant instructions.
The company employed a number of other executive assistants who assisted other executives; however, all of those assistants were classified as eligible for overtime pay. Those other assistants also earned far less than the CEO’s executive assistant.
The Court determined that, under all the facts of this situation, the CEO’s Executive Assistant had a sufficiently high level of independence and discretion to warrant the exemption from the overtime requirements.
The regulations accompanying the Fair Labor Standards Act (FLSA) provide for the possibility that the executive assistant to a company senior executive could be exempt from the overtime pay requirements under the administrative exemption. It does not happen often, but this case provides guidance for a type of situation where the exemption might be applied.
The overtime laws and regulations are very complex. Consult with employment counsel to be sure your company has sufficient arguments to support the overtime pay classifications assigned to its employees.
