Great Expectations: Salesman’s Incompetent Performance Does Not Defeat Exempt Status

How do you classify the outside salesperson who fails to sell?  The administrative employee who can’t or won’t exercise discretion and independent judgment?  The manager who would rather perform manual labor than manage others?  Plaintiffs often stress – and Department of Labor regulations state – that a job description alone doesn’t dictate exempt status; rather, it’s how an employee actually performs his job that controls.

Strict adherence to this paradigm could lead to absurd results.  The salesperson who doesn’t sell could be entitled to an hourly minimum wage, while her peers in the same job are not.  The administrative employee who won’t think for himself might get back overtime pay, while his co-workers who make decisions don’t.  The manager who stocks shelves himself for 60 hours a week becomes non-exempt, but those in the same position who delegate and supervise that work remain exempt.

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