Exempt executives? Dollar general store managers' embattled quest for overtime pay under the fair labor standards act

University of Pennsylvania Law Review

Volumn 160, Issue 1, 2011, Pages 277-329

  Frederick, Drew ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 83255170958     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Note

References (277)

1. U.S.C. §§ 201-219 (2006). For circuit court cases denying store managers' overtime claims, see Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 502-03 (6th Cir. 2007)
2. Jones v. Va. Oil Co., 69 Fed. App'x 633, 639 (4th Cir. 2003)
3. Murray v. Stuckey's, Inc., 939 F.2d 614, 620 (8th Cir. 1991)
4. Donovan v. Burger King Corp. (Burger King II ) , 675 F.2d 516, 522 (2d Cir. 1982)
5. Donovan v. Burger King Corp. (Burger King I ) , 672 F.2d 221, 227 (1st Cir. 1982). In a 1999 report, the U.S. Government Accountability Office identified this same trend toward exemption.
6. See U.S. GOV'T ACCOUNTABILITY OFFICE, GAO/HEHS-99-164, FAIR LABOR STANDARDS ACT: WHITECOLLAR EXEMPTIONS IN THE MODERN WORK PLACE 4 (1999) ("Our review of federal case law and [Department of Labor] compliance cases indicated that it is, in fact, difficult to challenge exempt classifications if employees supervise two or more full-time employees and spend some time-even if minimal-on management tasks.").
7. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1240, 1258 & n.34 (11th Cir. 2008)
8. cert. denied, 130 S. Ct. 59 (2009).
9. Family Dollar is not the only large retailer that has had to dole out millions for misclassifying its employees. In 2009, for example, a jury found that Staples had willfully misclassified its assistant managers as exempt executives. Stillman v. Staples, Inc., No. 07-0849, 2009 WL 1437817, at *2 (D.N.J. May 15, 2009). Staples subsequently agreed to settle that claim and other pending overtime suits for up to $42 million. Settlement Agreement at 3, In re Staples, Inc. Wage & Hour Emp't Practices Litig., MDL No. 2025, No. 08-5746 (D.N.J. Feb. 5, 2010). Radioshack and Starbucks are two other notable retailers that have reached massive overtime settlements within the last decade, $29.9 million and $18 million, respectively, with store managers and assistant managers.
10. Lisa Girion, Starbucks Settles Suit on Overtime, L.A. TIMES, Apr. 20, 2002, at C1
11. Radioshack to Pay $29.9 Million to Settle Lawsuit, N.Y. TIMES, July 17, 2002, at C4.
12. See Burger King II, 675 F.2d 516, 521-22 (2d Cir. 1982) (concluding that Burger King assistant managers' primary duties were managerial).
13. Auer v. Robbins, 519 U.S. 452, 456 (1997) (quoting 29 U.S.C. § 213(a)(1) (1994))
14. see also Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 613 n.6 (1944) (noting the Secretary of Labor's authority to "define and delimit" the "terms" used in the white collar exemptions).
15. See, e.g., Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 504 n.5 (6th Cir. 2007) ("Because the current and former regulations are so similar, our resolution of this case under the former regulations provides guidance to courts performing the 'primary duty' analysis under the current regulations." (quoting 29 C.F.R. § 541.700 (2007))).
16. See, e.g., In re Family Dollar FLSA Litig., 637 F.3d 508, 514-15 (4th Cir. 2011) (discussing the time-allocation prong first among the primary-duty factors)
17. Burger King II, 675 F.2d 516, 520-21 (2d Cir. 1982) (discussing whether Burger King assistant managers spent the majority of their time on managerial duties before examining the other factors of the primary-duty test).
18. Of course, retail store managers are always entitled to challenge these classifications since FLSA exemptions are determined on a case-by-case-factual circumstance to factual circumstance-basis. See, e.g., Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 503 n.4 (6th Cir. 2007) ("We do not adopt a rule that any employee who is in charge of a store has management as her primary duty . . . . [T]he proper analytical approach is to scrutinize the factors in the Secretary's regulations, not simply to determine whether the employee was 'in charge.'"). However, lower-level supervisors are generally unlikely to succeed on such claims.
19. Peter D. DeChiara, Rethinking the Managerial-Professional Exemption of the Fair Labor Standards Act, 43 AM. U. L. REV. 139, 150 & n.66 (1993) (collecting cases and concluding that "court decisions have made it clear that frontline supervisors do not enjoy FLSA coverage").
20. See Burger King II, 675 F.2d 516, 522 (2d Cir. 1982)
21. Burger King I, 672 F.2d 221, 226-28 (1st Cir. 1982).
22. A critical fact about the Burger King assistant managers is that each of them was generally the most senior employee at their restaurants when on duty. While two assistant managers and a store manager worked at the same location, their schedules rarely overlapped and so each essentially functioned like an independent store operator. Burger King II, 675 F.2d at 517
23. Burger King I 672 F.2d at 223.
24. Burger King II 675 F.2d at 520-21
25. Burger King I 672 F.2d at 225. In the Burger King cases, there were two sets of assistant managers-those who earned less than $250 per week and those who earned $250 or more. Applying the long-duties test to those who earned less than $250 per week, the circuits determined that such managers were not exempt as a matter of law and were accordingly owed overtime pay because they had spent forty percent of their time on nonmanagerial duties.
26. Burger King II 675 F.2d at 519-20
27. Burger King I 672 F.2d at 222-28. Those assistant managers who earned at least $250 per week had their status under FLSA governed by the short-duties test.
28. Burger King II 675 F.2d at 518
29. Burger King I 672 F.2d at 225. As such the assistant managers could have been exempted from overtime pay if they had "management" as their primary duty and regularly supervised the work of two or more employees. 29 C.F.R. § 541.1(f) (2003) (amended 2004).
30. Burger King II, 675 F.2d at 521-22.
31. Burger King II, 675 F.2d at 521 (quoting 29 C.F.R. § 154.103 (1981) (amended 2004)).
32. See Burger King II, 675 F.2d at 521 (concluding that "[t]he other 'pertinent factors' . . . support [Burger King's] position" (quoting 29 C.F.R. § 541.103 (1981))). The First Circuit's Burger King I opinion does not offer the analytical framework for the primary-duty analysis that the Second Circuit's does, which is why most cases cite to the Second, rather than the First, Circuit's opinion.
33. Burger King II, 675 F.2d at 522. The Burger King cases are not exceptional in how they handle the wage-comparison prong of the primary-duty analysis. In fact, courts tend to treat this factor as an afterthought and give it little, if any, weight when deciding cases. For more detailed discussion of the wage-comparison prong, see infra subsection IV.C.3.
34. Burger King II, 675 F.2d at 521. While this Comment devotes substantial space to the Second Circuit's treatment of the relative-importance prong, the court itself spent three sentences on the issue.
35. Courts since the Burger King cases have often cited deposition testimony by retail supervisors as support for finding that managerial duties were more important than nonmanagerial ones. See, e.g., Aschenbrenner v. Dolgencorp, Inc., No. 10-0153, 2011 WL 2200630, at *14 (D. Neb. June 3, 2011) ("Most important, [the store manager's] own testimony supports the conclusion that her managerial duties represented the most important part of her job.")
36. In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 641 (E.D.N.C. 2011) ("Most significantly, the store managers' own testimony demonstrates that their managerial tasks constituted the most important part of their jobs.")
37. Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *2 (M.D. Tenn. Nov. 18, 2010) (pointing to deposition testimony in which the plaintiff described herself as the store's "leader" and the person "in charge")
38. Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *21 (N.D. W. Va. Sept. 17, 2010) (noting that the plaintiff testified that she was "'the one in charge' at the store" and "that she never stopped managing her store even when performing nonmanagerial tasks").
39. Burger King II, 675 F.2d at 521.
40. The Second Circuit reasoned, "[T]he fact that much of the oversight of the operation can be carried out simultaneously with the performance of non-exempt work" supported the conclusion that "the principal or most important work of these employees is managerial." Burger King II, 675 F.2d at 521.
41. Burger King I, 672 F.2d 221, 226 (1st Cir. 1982).
42. Burger King II, 675 F.2d at 521-22. Id. at 521-22.
43. The First Circuit reached the same conclusion and found the assistant managers exempt despite Burger King's "well-defined policies" and the fact that "tasks [were] spelled out in great detail." Burger King I, 672 F.2d at 226.
44. When reformulating the executive-exemption test, the DOL initially proposed that an employer's "well-defined operating policies or procedures should not by itself defeat an employee's exempt status." Defining and Delimiting Exemptions, supra note 6, at 22,185. The Burger King line of cases certainly influenced this proposed regulation, as it incorporated language from the First Circuit's opinion. See Burger King I, 672 F.2d at 226 ("The fact that Burger King has well-defined policies, and that tasks are spelled out in great detail, is insufficient to negate th[e] conclusion" that the assistant managers had management as their primary duty. (emphasis added)). Perplexingly, the DOL abandoned the proposed rule change because "it seem[ed] relevant only to the administrative exemption." Defining and Delimiting Exemptions, supra note 6, at 22,185. While courts have never treated the issue of corporate policies as dispositive of an employee's primary duty, it is a factor they consider, particularly under the discretionary-powers prong, and the proposed rule could have potentially influenced the role such policies played in the analysis. Attributing the rule's abandonment to "relevancy" seems strange and unsatisfying.
45. Burger King II, 675 F.2d at 522
46. see also Burger King I, 672 F.2d at 227 ("[T]he person 'in charge' of a store has management as his primary duty . . . .").
47. Burger King II, 675 F.2d at 522.
48. Id. When undertaking the primary-duty analysis, courts frequently cite this "modern multi-store organization" language. See, e.g., Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 507 (6th Cir. 2007)
49. Jones v. Va. Oil Co., 69 Fed. App'x 633, 638 (4th Cir. 2003).
50. Murray, 939 F.2d at 620.
51. Speedway, 506 F.3d at 507-08.
52. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1240, 1285 (11th Cir. 2008)
53. cert. denied, 130 S. Ct. 59 (2009).
54. See id. at 1271 ("Family Dollar cites several cases concluding that managers of a free-standing store or restaurant were exempt as a matter of law."). In fact, the Eleventh Circuit devoted an entire subsection to distinguishing Morgan's facts from those of Burger King I and II, Murray, and Speedway. Id. at 1271-73.
55. Id. at 1248 n.8 (quoting Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299-1300 (11th Cir. 2007))
56. see also FED. R. CIV. P. 50(a) (setting forth the standard for judgment as a matter of law).
57. Perhaps most revealing were the descriptive words that the court used to describe the sufficiency of the evidence supporting the jury's verdict. For example, the court characterized the evidence showing that Family Dollar store managers dedicated upwards of eighty to ninety percent of their time to nonmanagerial tasks as "overwhelming." Morgan, 551 F.3d at 1269. Similarly, the court characterized the evidence relating to the other relevant factors as "substantial" and thus "support[ive of] the jury's verdict" that management was not the managers' primary duty. Id. at 1270. Lastly, the evidence that the managers' nonmanagerial functions were more important than their managerial ones and that they could not operate free from supervision was "ample," according to the court.
58. Id. Posely v. Eckerd Corp., 433 F. Supp. 2d 1287, 1302-03 (S.D. Fla. 2006) ("[T]he case law is replete with decisions holding managers of retail establishments to be exempt, notwithstanding the fact that they spent the majority of their time performing non-exempt tasks . . . .")
59. see also Jackson v. Advance Auto Parts, Inc., 362 F. Supp. 2d 1323, 1334 (N.D. Ga. 2005) (agreeing with the employer that assistant managers were exempt despite spending ninety percent of their time on manual work)
60. Moore v. Tractor Supply Co., 352 F. Supp. 2d 1268, 1273, 1279 (S.D. Fla. 2004) (finding a store manager exempt who spent ninety-five percent of his time on nonmanagerial tasks)
61. aff'd per curiam, 140 Fed. App'x 168 (11th Cir. 2005).
62. See Morgan, 551 F.3d at 1273 ("[O]ur affirmance of the jury's verdict . . . is based on a fact-intensive application of the factors espoused in the regulations, and not on a categorical approach of whether a particular employee is 'in charge.'").
63. For an example of a court that has taken the concept of concurrent duties to its logical extreme, see In re Family Dollar FLSA Litig., 637 F.3d 508, 515-17 (4th Cir. 2011). The Fourth Circuit stated, "In short, whether the [store manager] was simply standing around or stocking shelves, she remained responsible for addressing any problem that could arise and did arise during the course of the daily retail operations." Id. For further discussion, see infra subsection IV.C.2.
64. Morgan, 551 F.3d at 1270.
65. Morgan 551 F.3d at 1270.
66. See Morgan, 551 F.3d at 1270 ("The manuals and other corporate directives micro-managed the days and hours of store operations, the number of key sets for each store, who may possess the key sets, entire store layouts, the selection, presentation, and pricing of merchandise, promotions, payroll budgets, and staffing levels." (emphasis added)).
67. Brown v. Dologencorp, Inc., No. 02-0673, slip op. at 1 (N.D. Ala. Jan. 12, 2004) (order certifying a nationwide class).
68. In re Dollar Gen. Corp. Fair Labor Standards Litig., MDL No. 1635, No. 02-0673, slip op. at 1-2 (N.D. Ala. Aug. 7, 2006) (order on motion to decertify).
69. A subsequent class action was filed on August 8, 2006, against Dollar General in the same court alleging the same FLSA violations and is currently pending. Complaint at 2, Richter v. Dolgencorp, Inc., No. 06-1537 (N.D. Ala. Aug. 8, 2006).
70. Judge Scott Coogler of the Northern District of Alabama conditionally certified a nationwide class on March 23, 2007. Richter, No. 06-1537, slip op. at 11 (Mar. 23, 2007) (order certifying a nationwide class).
71. Eleven district court cases have granted summary judgment to Dollar General. See Aschenbrenner v. Dolgencorp, Inc., No. 10-0153, 2011 WL 2200630, at *1 (D. Neb. June 3, 2011)
72. Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at *10 (W.D. Ky. May 23, 2011)
73. In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 650 (E.D.N.C. 2011)
74. Brown-Harrison v. Dolgencorp of Tex., Inc., No. 09-0116, slip op. at 17 (N.D. Tex. Dec. 28, 2010)
75. Speak v. Dolgencorp of Tex., Inc., No. 09-0124, slip op. at 1 (N.D. Tex. Dec. 28, 2010)
76. Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *1 (M.D. Tenn. Nov. 18, 2010)
77. Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *1 (N.D. W. Va. Sept. 17, 2010)
78. Hartman v. Dolgencorp of Tex., Inc., No. 09-0009, slip op. at 12 (N.D. Tex. June 24, 2010)
79. Johnson v. DG Retail LLC, No. 08-0123, 2010 WL 1929620, at *1 (D. Utah May 13, 2010)
80. Noble v. Dolgencorp, Inc., No. 09-0049, slip op. at 1 (S.D. Miss. May 11, 2010)
81. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 1 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge), adopted by No. 09-0146 ( J un. 17, 2010) (order adopting report and recommendation of magistrate judge) Seven district court cases have denied Dollar General's motions for summary judgment.
82. Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *20 (N.D. Iowa June 8, 2011)
83. Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *1 (N.D.N.Y. May 9, 2011)
84. Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *13 (M.D. Pa. Feb. 3, 2011)
85. Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *14 (M.D. Pa. Dec. 14, 2010)
86. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *1 (E.D. Mo. July 8, 2010)
87. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *1 (W.D. Va. June 23, 2010)
88. Myrick v. Dolgencorp, LLC, No. 09-0005, 2010 WL 146874, at *1 (M.D. Ga. Jan. 11, 2010). Most of the store managers in these suits worked at Dollar General sometime between 1999 and 2004, before the current DOL regulations went into effect in August 2004. Several cases, though, concerned employees under the new regulations.
89. See, e.g. Johnson, 2010 WL 1929620, at *1 (stating that the plaintiff became a store manager in 2007)
90. "Dollar General . . . is a nationwide retail chain of discount, consumable goods, such as cleaning supplies, health and beauty aids, foods/snacks, housewares, toys, and basic apparel." Jones, 2011 WL 2261480, at *1. Roughly twenty-five percent of these goods sell for a dollar or less, with the remaining merchandise typically priced below ten dollars. Id. Dollar General operates over 9600 stores in thirty-five states throughout the country.
91. Store Locations Map, DOLLAR GEN., http://www2.dollargeneral.com/About-Us/ pages/store-locations-map.aspx (last visited Oct. 15, 2011). As of October 2011, Dollar General operated no stores within the jurisdiction of the First Circuit and had only Arizona-based stores within the Ninth Circuit. Id.
92. See, e.g., Jones, 2011 WL 2261480, at *1 (explaining that Dollar General's corporate headquarters provided "detailed operating-procedures manuals to every store manager")
93. Aschenbrenner 2011 WL 2200630, at *1 (noting that "Dollar General operated its stores according to uniform Standard Operating Procedure manuals")
94. Roberts, 2010 WL 4806792, at *1 ("All Dollar General stores are operated according to a uniform Standard Operating Procedures (SOP) manual distributed by Dollar General's corporate offices.").
95. See, e.g., Anderson, 2011 WL 1770301, at *1 (finding that store managers "occupy the highest level of supervisory authority and are the only employees paid on a salaried basis" at their store and "report[] to a District Manager")
96. Johnson 2010 WL 1929620, at *1-2 (explaining that the store manager was the "only salaried employee at the store," "the boss of the store," and "reported to a District Manager").
97. See, e.g., Anderson, 2011 WL 1770301, at *1-2 (compiling essential duties listed in the Dollar General store manager job description)
98. Plaunt, 2010 WL 5158620, at *2 (listing duties that plaintiff, had, which were the same duties as those listed in Anderson)
99. Mayne-Harrison 2010 WL 3717604, at *8 (same).
100. See, e.g., Roberts, 2010 WL 4806792, at *1 (stating that "all [Dollar General] store managers . . . are eligible for a bonus")
101. Myrick, 2010 WL 146874, at *7 (noting that the plaintiff store manager had earned several bonuses for her job performance while working at Dollar General).
102. See, e.g., Jones, 2011 WL 2261480, at *2 (explaining that the plaintiff store manager allegedly spent "only ten percent" of her time on managerial tasks)
103. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *2 (E.D. Mo. July 8, 2010) ("According to Kanatzer, she spends nearly all of her time-up to 90% of her time-on . . . manual duties . . . .")
104. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *3 (W.D. Va. June 23, 2010) (observing that the plaintiff store manager claimed to have "spent ten percent of her time, about six hours each week, performing management duties").
105. See, e.g., Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at *6 (W.D. Ky. May 23, 2011) ("Leonard spends about 70% of her time on manual labor or non-management issues.")
106. Plaunt, 2010 WL 5158620, at *7 ("While it is not clear what percentage of Plaunt's time was spent on managerial tasks, we will assume she spent less than 50% of her time performing purely managerial tasks.")
107. Johnson, 2010 WL 1929620, at *3 (noting that the plaintiff store manager spent between seventy and eighty percent of her time on nonmanagerial work).
108. See, e.g., Jones, 2011 WL 2261480, at *15 (commenting that the store manager "was responsible for taking applications, reviewing applications, interviewing job applicants, checking references, selecting, and hiring certain employees")
109. Leonard, 2011 WL 2009937, at *2 (finding that the store manager spent roughly five percent of her work week "reviewing [job] applications, evaluating them and deciding on call backs, conducting interviews, and finally making a hiring recommendation").
110. See, e.g., Aschenbrenner, 2011 WL 2200630, at *4 (asserting that the store manager was responsible for "training and ongoing development of employees," as well as "making recommendations for adjustments to [their] pay rates")
111. Plaunt, 2010 WL 5158620, at *2 (finding that the plaintiff store manager "trained[,] evaluated[,] and counseled employees" and "recommended [them] for pay raises and promotions").
112. See, e.g., Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *1 (N.D.N.Y. May 9, 2011) (listing the communication of "performance, conduct and safety expectations" to employees as an essential job function of the store manager)
113. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 5 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge) (noting that the store manager held regular store meetings "to communicate to employees how to do their job; to discuss ongoing problems in the store; to air grievances; and to announce and explain new policies"), adopted by No. 09-0146 (June 17, 2010) (order adopting report and recommendation of magistrate judge).
114. See, e.g., In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 644 (E.D.N.C. 2011) (finding that the store manager "directed the work of her employees by scheduling when they would work and by assigning or delegating daily tasks to them")
115. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *4 (E.D. Mo. July 8, 2010) (explaining that, while the store manager "schedule[d] employee work shifts" and "assign[ed] tasks to the other employees at the store," corporate dictates constrained her discretion in doing so).
116. See, e.g., Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *2 (M.D. Tenn. Nov. 18, 2010) ("[W]hile authority to terminate employees rested with the district manager, Roberts . . . made termination recommendations to her district manager.")
117. Kanatzer, 2010 WL 2720788, at *1 (mentioning that if an employee seriously misbehaves, then the store manager "must report it to the district manager, who then takes responsibility for the situation").
118. See, e.g., Aschenbrenner, 2011 WL 2200630, at *4 (listing "directing the flow of merchandise from the back door delivery to the sales floor" as a job performed by the store manager)
119. Plaunt, 2010 WL 5158620, at *2 (explaining that the store manager "facilitated efficient staging, stocking, and storage of merchandise").
120. See, e.g., Plaunt, 2010 WL 5158620, at *2 (finding that the store manager "evaluated operating statements to identify . . . potential theft" and "maintained accurate inventory levels by controlling damage [and] markdowns")
121. Roberts, 2010 WL 4806792, at *3 (explaining that the store manager played a "key role in reducing 'shrinkage,' or avoiding loss" by "ensuring that vendors were honoring their delivery obligations, preventing shoplifting, ensuring that her employees were not stealing, and marking down damaged merchandise, rather than simply throwing it away").
122. See, e.g., Leonard v. Dolgencorp, Inc., No. 10-0057, 2011 WL 2009937, at *3 (W.D. Ky. May 23, 2011) ("Leonard was responsible for proper cash handling procedures at her store and would monitor daily reports showing cashier shortages, voids and refunds.")
123. Anderson, 2011 WL 1770301, at *3 (listing "ensuring that cash registers 'balanced'" as one of the store manager's duties).
124. See, e.g., Roberts, 2010 WL 4806792, at *4 (explaining that hundreds of boxes of inventory arrived on "truck day" every week and that the store manager facilitated the unloading and stocking of merchandise on these days)
125. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *3 (W.D. Va. June 23, 2010) (noting that the store manager was responsible for "unload[ing] supply trucks and plac[ing] merchandise on the store floors").
126. See, e.g., Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *2 (M.D. Pa. Feb. 3, 2011) (commenting that the store manager "handled customer complaints if another employee could not resolve" the issue).
127. See, e.g., Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *1 (N.D. Iowa June 8, 2011) ("District managers strictly control[ed] the number of labor hours given to each store, and their approval [was] required before a store's labor budget [could be] exceeded by the store manager.")
128. In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 635 (E.D.N.C. 2011) (explaining that the district manager "handed down a labor budget . . . each week").
129. See, e.g., In re Dollar Gen. Stores, 766 F. Supp. 2d at 635 (explaining that "[t]he store would get one truck delivery per week and would receive about 1200 or more boxes of merchandise")
130. Roberts, 2010 WL 4806792, at *4 (stating that "[s]tores generally received between 800 and 1200 boxes of merchandise on truck day").
131. See, e.g., In re Dollar Gen. Stores, 766 F. Supp. 2d at 635 ("The majority of the labor budget was spent on truck day and the day after, which did not leave many hours to schedule for the rest of the week.")
132. Hale, 2010 WL 2595313, at *3 (describing how the store manager would "save her staff's hours for truck day so merchandise could be placed in the store within twenty-four hours" and how, as a result, the store operated with a "skeleton crew" for the remainder of the week).
133. See, e.g., Aschenbrenner v. Dolgencorp, Inc., No. 10-0153, 2011 WL 2200630, at *16 (D. Neb. June 3, 2011) (noting that the plaintiff could not "set[] the initial pay rate of employees")
134. Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *14 (M.D. Pa. Dec. 14, 2010) (same).
135. See, e.g., Jones, 2011 WL 2261480, at *15 (stating that plaintiff "was not permitted to hire a full-time, key-carrying employee without the district manager's approval")
136. Leonard v. Dolgencorp Inc. No. 10-0057, 2011 WL 2009937, at *1 (W.D. Ky. May 23 2011) (reporting that "interview[ing] applicants for 'key carrier positions'" was the district manager's duty).
137. See, e.g., In re Dollar Gen. Stores, 766 F. Supp. 2d at 643 (explaining that "store merchandise is automatically ordered by Dollar General's Basic Stock Replenishment System")
138. Roberts, 2010 WL 4806792, at *3 ("[S]tore managers have virtually no control over the specific merchandise that is sold in the store, and the vast majority of 'purchasing' for the store is done by an automatic system that orders more of a good as it is sold.").
139. See, e.g., Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *13 (N.D. W. Va. Sept. 17, 2010) (noting that a "planogram" directs where "most" merchandise must be placed in the store, with placement of ninety percent of seasonal products being determined in such a manner by Dollar General's corporate office)
140. Hale, 2010 WL 2595313, at *3 ("Typically, ninety percent of Hale's store was organized according to the Plan-O-Gram . . . .").
141. Aschenbrenner, 2011 WL 2200630, at *15
142. accord Jones, 2011 WL 2261480, at *1.
143. See, e.g., Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *1 (N.D.N.Y. May 9, 2011) (noting that district managers "over[saw] from fifteen to twenty-five stores")
144. Roberts, 2010 WL 4806792, at *2 (describing how the plaintiff's district manager "generally oversaw between 16-18 stores").
145. See, e.g., Speak v. Dolgencorp of Tex., Inc., No. 09-0124, slip op. at 13 (N.D. Tex. Dec. 28, 2010) (observing that the district manager visited the plaintiff's store about twice a month and that these visits were "typically only a few hours long")
146. Hale, 2010 WL 2595313, at *4 (explaining that the district manager visited the store manager's location "once every few months for twenty to thirty minutes").
147. See, e.g., Roberts, 2010 WL 4806792, at *2 (noting that the district manager left "regular, often daily," voicemails for the store manager)
148. Mayne-Harrison, 2010 WL 3717604, at *3 (stating that the store manager received voicemail messages from the district manager "at least three times a week").
149. See, e.g., Jones, 2011 WL 2261480, at *2 (explaining that the store manager's weekly salary ranged from $440 to $515)
150. Johnson v. DG Retail LLC, No. 08-0123, 2010 WL 1929620, at *3 (D. Utah May 13, 2010) (noting that the store manager received a weekly salary of $538.40)
151. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 27 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge) (stating that the store manager earned a weekly salary between $490 and $500 during her tenure with Dollar General), adopted by No. 09-0146 (June 17, 2010) (order adopting report and recommendation of magistrate judge).
152. See Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *2 (E.D. Mo. July 8, 2010) (stating that the store manager's salary was $768 per week)
153. Hale, 2010 WL 2595313, at *3 (noting that the store manager's weekly salary was $313 at one point).
154. See Kanatzer, 2010 WL 2720788, at *5 ("Viewing Kanatzer's job as a whole, Dolgencorp has not shown that Kanatzer is exempt.").
155. See, e.g., Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *1 (M.D. Pa. Dec. 14, 2010) (stating that the store manager "never earned . . . a bonus")
156. Noble v. Dolgencorp, Inc., No. 09-0049, slip op. at 3 (S.D. Miss. May 11, 2010) (explaining that the store manager "was eligible for bonuses throughout her employment but never received one").
157. See, e.g., Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *1 (M.D. Pa. Feb. 3, 2011) (noting that in 2002 the store manager received a bonus of $7150.25 to share with store staff)
158. Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *1 (M.D. Tenn. Nov. 18, 2010) (highlighting that the store manager received bonuses of $7071 and $9271 in 2001 and 2002, respectively).
159. See Aschenbrenner v. Dolgencorp, Inc., No. 10-0153, 2011 WL 2200630, at *19 (D. Neb. June 3, 2011)
160. Leonard v. Dolgencorp, Inc., No. 10-0057, 2011 WL 2009937, at *3 (W.D. Ky. May 23, 2011)
161. In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 633 (E.D.N.C. 2011)
162. Roberts, 2010 WL 4806792 at *1
163. Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *2 (N.D. W. Va. Sept. 17, 2010)
164. Hartman v. Dolgencorp of Tex., Inc. No. 09-0009 (N.D. Tex. June 24 2010)
165. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 14 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge), adopted by No. 09-0146 (J une 17, 2010) (order adopting report and recommendation of magistrate judge).
166. See Johnson v. DG Retail LLC, No. 08-0123, 2010 WL 1929620, at *1 (D. Utah May 13, 2010)
167. Noble, No. 09-0049, slip op. at 3.
168. See In re Dollar Gen. Stores, 766 F. Supp. 2d at 635-36 (E.D.N.C. 2011)
169. Brown-Harrison v. Dolgencorp of Tex., Inc., No. 09-0116, slip op. at 2 (N.D. Tex. Dec. 28, 2010)
170. Speak v. Dolgencorp of Tex., Inc., No. 09-0124, slip op. at 8 (N.D. Tex. Dec. 28, 2010). The In re Dollar General Stores case involved two store managers' claims. The case notes that one of these managers received bonuses but says nothing about the other.
171. See Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *2 (N.D. Iowa June 8, 2011)
172. Pierce, 2011 WL 398366 at *1
173. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *3 (W.D. Va. June 23, 2010)
174. Myrick v. Dolgencorp, LLC, No. 09-0005, 2010 WL 146874, at *7 (M.D. Ga. Jan. 11, 2010).
175. See Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *1 (M.D. Pa. Dec. 14, 2010).
176. See Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *13 (N.D.N.Y. May 9, 2011)
177. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788 (E.D. Mo. July 8, 2010).
178. The Hartman court mentioned that the store manager had received bonuses, but then did not incorporate that fact into the wage-comparison prong of the primaryduty analysis. Hartman v. Dolgencorp of Tex., Inc., No. 09-0009, slip op. at 12 (N.D. Tex. June 24, 2010). The King court calculated the wage differential between the store manager and her assistant both with and without bonuses and determined that the difference was significant, even excluding bonuses from the calculation.
179. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 1, 27-28 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge), adopted by No. 09-0146 ( June 17, 2010) (order adopting report and recommendation of magistrate judge).
180. Following the Sixth Circuit in Speedway, the Roberts court decided that it "should estimate weekly hours on the low end, to compensate for the fact that the plaintiff was eligible for a bonus." Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *10 (M.D. Tenn. Nov. 18, 2010). The plaintiff estimated that she worked between forty-five and eighty hours per week, so the court calculated her hourly wage based on a fifty-hour work week. Id. While the Mayne-Harrison and In re Dollar General courts factored bonuses into the wage-comparison analysis, they determined that the store manager in each case "was making more, or at least the same, in her management positions as nonexempt employees."
181. In re Dollar Gen. Stores, 766 F. Supp. 2d at 648-49
182. (quoting Jones v. Va. Oil Co., 69 Fed. App'x 633, 639 (4th Cir. 2003) (internal quotation marks
183. accord Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *23 (N.D. W. Va. Sept. 17, 2010). The courts' statements suggest that it was more the wage-comparison approach they undertook than the bonuses themselves that drove their conclusions. For instance, the Morgan court would have found that a manager making the same amount as a nonexempt employee tilted in favor of finding the manager nonexempt-in other words, the opposite of what the Mayne-Harrison and In re Dollar General courts found.
184. See, e.g., Roberts, 2010 WL 4806792, at *9 ("In light of . . . the clear language of Speedway, the court must conclude that the plaintiff's managerial role was 'much more important' than her non-managerial role."
185. (quoting Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 505 (6th Cir. 2007))).
186. In re Dollar Gen. Stores, 766 F. Supp. 2d at 640-43
187. see also Mayne-Harrison, 2010 WL 3717604, at *21 (commenting that plaintiff was "the one in charge at the store")
188. Johnson v. DG Retail LLC, No. 08-0123, 2010 WL 1929620, at *4 (D. Utah May 13, 2010) (evaluating plaintiff on managerial skills and profitability of store and noting that she was "ultimately in charge" and "the boss" of the store)
189. King, No. 09-0146, slip op. at 20-23 (report and recommendation of magistrate judge) (pointing to plaintiff's performance review, her testimony, and her job description as evidence that her managerial duties were more important).
190. King, No. 09-0146, slip op. at 23 (report and recommendation of magistrate judge)
191. see also Roberts, 2010 WL 4806792, at *9 ("As in Speedway, if the plaintiff did not [perform her nonmanagerial tasks,] the performance of the store would certainly be adversely affected; however, if she did not [do her managerial tasks,] the store would cease to function at all.")
192. Mayne-Harrison, 2010 WL 3717604, at *21 ("If Mayne-Harrison had not performed her nonmanagerial tasks her store may not have performed well; but if she had not performed her managerial functions . . . the store would not have operated at all.").
193. See, e.g., Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *14 (N.D. Iowa June 8, 2011) (finding that Dollar General had "failed to meet [its] burden of establishing no genuine issue of material fact on the question of whether Joyner's managerial duties were more important . . . than her non-managerial duties")
194. Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *9 (M.D. Pa. Feb. 3, 2011) ("A reasonable jury could conclude . . . that Dolgencorp valued Pierce's manual labor more highly than her managerial functions.").
195. See, e.g., Jones, 2011 WL 2261480, at *14 ("While it is true that Joyner was responsible, as a store manager, for ensuring the store's profitability, she was also responsible for performing a substantial amount of the manual labor necessary to ensure its profitability . . . .")
196. Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *11 (N.D.N.Y. May 9, 2011) (finding the "restrictiveness with which Dollar General . . . allot[ted] its labor budget" as "most significant[]" for why summary judgment was inappropriate on the relative-importance prong of the primary-duty test).
197. See Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *8 (M.D. Pa. Dec. 14, 2010) ("A reasonable jury could, however, also conclude that, given the fact that Plaunt's ASM had a similar job description . . . that if Plaunt did not perform her managerial functions the store would have continued to operate, albeit less efficiently.")
198. Myrick v. Dolgencorp, LLC, No. 09-0005, 2010 WL 146874, at *5 n.7 (M.D. Ga. Jan. 11, 2010) ("It should also be noted that many of Myrick's managerial tasks were also performed by non-salaried employees.").
199. Roberts, 2010 WL 4806792, at *9
200. (quoting Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 499 (6th Cir. 2007)).
201. Cf. A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (noting in discussing another FLSA exemption that "[t]o extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people").
202. The Eleventh Circuit in Morgan explicitly took this position: "Having discretionary power is one aspect of freedom from supervision." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1270 n.57 (11th Cir. 2008), cert. denied, 130 S. Ct. 59 (2009). The court highlighted that the current regulations require a primary-duty determination "to be made 'with the major emphasis on the character of the employee's job as a whole.'" Id. (quoting 29 C.F.R. § 541.700(a) (2006)). The court concluded that "the new regulations do not preclude, and are consistent with, our consideration of the frequency with which an employee exercises discretionary powers in our primary duty analysis." Id.
203. see also Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *9 (M.D. Tenn. Nov. 18, 2010) (noting that while the new regulations omit the discretionary-powers prong, "issues of manager authority and control remain centrally relevant" to the primary-duty analysis).
204. An opinion coming after In re Family Dollar-by the same Western District of Virginia judge who denied Dollar General's summary judgment motion in Hale v. Dolgencorp, Inc.-portends the negative impact the Fourth Circuit's opinion will have on overtime claims. In reviewing the proposed settlement agreements between Hale and other store managers with Dollar General, the judge noted that the settlement amounts were "significantly less than the amount of back wages and liquidated damages claimed" and that the "claims, if believed by a jury, might reasonably result in a verdict for the plaintiff[s]." Taylor v. Dolgencorp, Inc., No. 09-0002, 2011 WL 1626557, at *1 (W.D. Va. Apr. 28, 2011). While the judge pointed to his Hale opinion to demonstrate the legitimacy of the plaintiffs' overtime claims, he also conceded that the Fourth Circuit's In re Family Dollar opinion "on similar facts" had "substantially undercut [his] decision." Id. Were the judge confronted with another Dollar General case, his analysis would likely differ from that in Hale and the outcome very well could be summary dismissal of the manager's claims. summary judgment have settled with Dollar General. See infra note 226.
205. Thus far, district courts in the Sixth Circuit have leaned heavily on the Speedway opinion and used it as their controlling precedent when conducting the primary-duty analysis. See Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at *1 (W.D. Ky. May 23, 2011) ("Recently, in Thomas v. Speedway SuperAmerica, the Sixth Circuit set out a clear roadmap for determining [whether a Dollar General store manager's primary duty is management]. The Court will follow this roadmap, noting that the facts in Speedway SuperAmerica are quite similar to those here." (citation omitted))
206. Roberts, 2010 WL 4806792, at *6 n.4 (M.D. Tenn. Nov. 18, 2010) (discussing the split among courts regarding Dollar General store managers' FLSA-exemption status, but finding the issue "squarely controlled by the Sixth Circuit's ruling in Speedway"). Not surprisingly, both the Leonard and Roberts courts found the Dollar General store managers exempt as a matter of law.
207. Leonard, 2011 WL 2009937, at *10
208. Roberts, 2010 WL 4806792, at *11.
209. See Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *12, *14, *16-18 (N.D. Iowa June 8, 2011) (determining that material factual disputes existed on all primary-duty prongs)
210. Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *10-12 (N.D.N.Y. May 9, 2011) (finding disputed questions of fact on the time-allocation, relative-importance, and wage-differential prongs of the primary-duty test)
211. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *5 (E.D. Mo. July 8, 2010) (concluding that material disputes of fact existed on all primary-duty prongs).
212. But see Aschenbrenner v. Dolgencorp, Inc., No. 10-0153, 2011 WL 2200630, at *14 (D. Neb. June 3, 2011) (finding no factual issues upon which reasonable minds could disagree and thus granting summary judgment to Dollar General).
213. Anderson, 2011 WL 177031, at *7.
214. Kanatzer, 2010 WL 2720788, at *5 n.5. Two other district courts in the Eighth Circuit have ruled on Dollar General summary judgment motions since Kanatzer.
215. Aschenbrenner, 2011 WL 2200630. These courts referenced Murray more frequently than Kanatzer, but neither found Murray dispositive of the primaryduty inquiry as applied to retail store managers. In fact, at various points throughout its opinion, the Jones court explicitly distinguished the Dollar General facts from the Murray precedent.
216. See Jones, 2011 WL 2261480, at *16
217. ("I recognize that under Eighth Circuit . . . precedent in Murray . . . , Joyner need not have 'ultimate' authority for all managerial decision in order to be exempt from the FLSA. Nonetheless, I still find that a significant question of material fact exists concerning whether Dollar General's policies prevented Joyner from frequently exercising discretion 'day-to-day' . . . ." (citation omitted) (quoting Murray v. Stuckey's, Inc., 939 F.2d 614, 618-19 (8th Cir. 1991))).
218. See, e.g., In re Family Dollar, 637 F.3d at 518 (discount retailers)
219. Burgar King II, 675 F.2d 516, 522 (2d Cir. 1982) (fast food restaurants)
220. Thomas v. Speedway Super-America, LLC, 506 F.3d 496, 509 (6th Cir. 2007) (gasoline stores).
221. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1270-71 (11th Cir. 2008), cert. denied, 130 S. Ct. 59 (2009).
222. See In re Family Dollar, 637 F.3d at 515-16 ("[W]hile [the store manager] performed nonmanagerial tasks around the store as she determined necessary, she concurrently performed the managerial duties of running the store.").
223. See, e.g., Murray v. Stuckey's, Inc., 939 F.2d 614, 618 (8th Cir. 1991) (listing the wage-comparison prong among the primary duty factors but failing to consider it)
224. Burger King II, 675 F.2d 516, 522 (2d Cir. 1982) (concluding that, relative to employees doing exclusively non-exempt work, the Burger King assistant managers "were paid substantially higher wages even taking their longer hours into account")
225. Burger King I, 672 F.2d 221, 225-26 (1st Cir. 1982) (finding that some of the primary duty factors "quite clearly cut in favor of" exemption, notably "a comparison of wages with other employees," but providing no analysis as to why).
226. See, e.g., In re Family Dollar, 637 F.3d at 517 (explaining that courts are to "look to the relationship between the store manager's salary and nonexempt employees' wages").
227. Compare Moore v. Tractor Supply Co., 352 F. Supp. 2d 1268, 1278-79 (S.D. Fla. 2004) (comparing the store manager's weekly salary to that earned by other employees without accounting for the difference in number of hours worked) aff'd per curiam, 140 Fed. App'x 168 (11th Cir. 2005)
228. Johnson v. Big Lots Stores, Inc., 604 F. Supp. 2d 903, 923 (E.D. La. 2009) (comparing the assistant store manager's salary to that earned by subordinates on an hourly basis). Only three of the eighteen Dollar General courts declined to convert a store manager's weekly salary into an hourly rate of pay.
229. See Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at , at *9 (W.D. Ky. May 23, 2011) (refusing to adopt an hourly-wage comparison approach because the managers' "hours reflect her greater responsibility and provide her the opportunity to earn more")
230. Hartman v. Dolgencorp of Tex., Inc., No. 09-0009, slip op. at 12 (N.D. Tex. June 24, 2010) ("Although Plaintiff attempts to divide her weekly salary by alleged hours worked, courts have disregarded this attempt and focused instead on the weekly amount of pay.")
231. Johnson v. DG Retail LLC, No. 08-0123, 2010 WL 1929620, at *6 (D. Utah May 13, 2010) (contending that the store manager's "argument" that her salary should be converted into an hourly rate "collapses on itself" because she "was not confined to work a certain number of hours").
232. Rather than converting the store manager's salary into an hourly rate, the Hale court converted other employees' wages into a weekly salary based on the alleged number of hours that the store manager worked and then compared that figure with the store manager's weekly salary. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *6 (W.D. Va. June 23, 2010). Per the FLSA's mandate, the court calculated the employees' wages at time and a half their
233. See In re Family Dollar, 637 F.3d at 517-18 (converting the store manager's salary into an hourly wage and comparing it to the hourly wages of other employees)
234. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1271 (11th Cir. 2008) (same), cert. denied, 130 S. Ct. 59 (2009)
235. Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 508-09 (6th Cir. 2007) (same).
236. Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *13 (M.D. Pa. Dec. 14, 2010)
237. see also Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *12 (M.D. Pa. Feb. 3, 2011) (employing verbatim Plaunt's rationale).
238. See, e.g., Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *2, *17-18 (N.D. Iowa June 8, 2011) (stating in the fact section that the store manager earned a bonus but failing to consider this bonus award in the wage-comparison prong)
239. Pierce, 2011 WL 398366, at *1, *11-12 (same)
240. King v. Dolgencorp, Inc., No. 09-0146, slip op. at 14, 27-28 (M.D. Pa. May 6, 2010) (report and recommendation of magistrate judge) (same), adopted by No. 09-0146 ( J un. 17, 2010) (order adopting report and recommendation of magistrate judge).
241. See, e.g., Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *23 (N.D. W. Va. Sept. 17, 2010) (commenting that the store manager's "salary was not the totality of [her] compensation" and adding bonuses earned to her annual salary)
242. Myrick v. Dolgencorp, LLC, No. 09-0005, 2010 WL 146874, at *7 n.12 (M.D. Ga. Jan. 11, 2010) (factoring the store manager's bonuses into her salary when undertaking the wage-comparison analysis).
243. No. 09-0014, 2010 WL 2595313, at *6 (W.D. Va. June 23, 2010); see also In re Dollar Gen. FLSA Litig., 766 F. Supp. 2d 631, 648-49 (E.D.N.C. 2011) (finding that the store manager "received a larger bonus than the other employees" and that this fact pushed the wage-comparison prong toward exemption).
244. No. 10-0153, 2011 WL 2200630, at *19 (D. Neb. June 3, 2011). But see Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *13 (N.D.N.Y. May 9, 2011) (acknowledging that the store manager was "eligible for a larger bonus" than the assistant manager but that this "bonus eligibility, while relevant, does not . . . conclusively tip the scales in favor of summary judgment").
245. See Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at *9 (W.D. Ky. May 23, 2011) ("The structure of [the store manager's] compensation-that is, the substantial bonus opportunity-further reflects her central role in the store as a profit center. All of the discretion, authority and leadership she exercised was viewed as contributing to store performance. As such, she was paid accordingly." (emphasis added)). Somewhat perplexingly, the Leonard court did not attribute its use of "profit center" to the Fourth Circuit.
246. In re Family Dollar, 637 F.3d at 517.
247. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1257-58, 1271 (11th Cir. 2008). The court did not state this percentage explicitly. But if one subtracts the hourly wage of the assistant store managers ($7.60) from the store managers' ($9.99) and divides by the assistant store managers' wage rate ($7.60), the result is approximately thirty-one percent.
248. Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 509 (6th Cir. 2007).
249. Compare, e.g., Myrick v. Dolgencorp, LLC, No. 09-0005, 2010 WL 146874, at *7 (M.D. Ga. Jan. 11, 2010) (finding that the store manager "made, at most, $2.85 more per hour" than her assistant managers-a 40.7% pay differential-and that, in light of Morgan, this difference was not significant)
250. with Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *10 (M.D. Tenn. Nov. 18, 2010) ("The plaintiff's 'hourly' salary was between 20 and 36 percent higher than the next highest paid non-salary employee, not to mention other 'subordinate employees.' Under Speedway, this calculus supports the defendant's primary duty argument.").
251. See, e.g., Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 09-0084, 2010 WL 5158620, at *1 (M.D. Pa. Dec. 14, 2010) (finding that "[o]n average" the store manager "worked fifty hours per week")
252. Kanatzer v. Dolgencorp, Inc., No. 09-0074, 2010 WL 2720788, at *2 (E.D. Mo. July 8, 2010) (noting that until 2005 the store manager "worked fifty hours per week").
253. See, e.g., Leonard v. Dolgencorp Inc., No. 10-0057, 2011 WL 2009937, at *2 (W.D. Ky. May 23, 2011) (explaining that the store manager "worked between 60 and 80 hours per week")
254. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *3 (W.D. Va. June 23, 2010) (finding that the store manager "averaged between sixty to seventy hours of work per week").
255. Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *23 (N.D. W. Va. Sept. 17, 2010)
256. accord In re Dollar Gen. Stores FLSA Litig., 766 F. Supp. 2d 631, 649 (E.D.N.C. 2011).
257. Regan C. Rowan, Comment, Solving the Bluish Collar Problem: An Analysis of the DOL's Modernization of the Exemptions to the Fair Labor Standards Act, 7 U. PA. J. LAB. & EMP. L. 119, 124 (2004) ("The legislative history of the FLSA contains no explanation for the white collar exemptions.").
258. L. Camille Hebert, "Updating" the "White-Collar" Employee Exemptions to the Fair Labor Standards Act, 7 EMP. RTS. & EMP. POL'Y J. 51, 56-57 (2003).
259. See, e.g., DeChiara, supra note 28, at 187 (suggesting comp time as an alternative to overtime pay for overworked executives); Michael A. Faillace, Automatic Exemption of Highly-Paid Employees and Other Proposed Amendments to the White-Collar Exemptions: Bringing the Fair Labor Standards Act into the 21st Century, 15 LAB. LAW. 357, 360 (2000) ("[T]he requirements of the exemption tests under the FLSA are no longer applicable to modern working conditions, and . . . should [be] reform[ed] . . . substantially in order to respond to the legitimate needs of today's employees and employers.").
260. This correlation is also borne out in the DOL's early and later experience with the test. See Defining and Delimiting Exemptions, supra note 6, at 22,173 ("The experience of the Divisions has shown that in the categories of employees under consideration the higher the salaries paid the more likely the employees are to meet all the requirements for exemption." (quoting HARRY WEISS, U.S. DEP'T OF LABOR, REPORT AND RECOMMENDATIONS ON PROPOSED REVISIONS AND REGULATIONS, PART 541, at 22-23 (1949)))
261. See Jones v. Dolgencorp, Inc., No. 10-3020, 2011 WL 2261480, at *2 (N.D. Iowa June 8, 2011) (stating that the store manager earned a weekly salary of $440 in April 2001)
262. Anderson v. Dolgencorp of N.Y., Inc., Nos. 09-0360, 09-0363, 2011 WL 1770301, at *3, *6 (N.D.N.Y. May 9, 2011) (noting that one of the store managers involved in the suit "was paid a fixed weekly salary of $425," while the other manager initially earned $423 per week)
263. Pierce v. Dolgencorp, Inc., Nos. 09-0079, 09-0097, 2011 WL 398366, at *1 (M.D. Pa. Feb. 3, 2011) (stating that Pierce received weekly salaries of $355.77 and $423.08 in June 2001 and April 2002, respectively)
264. In re Dollar Gen. FLSA Litig., 766 F. Supp. 2d 631, 633 (E.D.N.C. 2011) (explaining that the store manager earned a weekly salary of $385 in 2001)
265. Speak v. Dolgencorp of Tex., Inc., No. 09-0124, slip op. at 2 (N.D. Tex. Dec. 28, 2010) (noting that in September 2001 the store manger received a $450 weekly salary)
266. Plaunt v. Dolgencorp, Inc., Nos. 09-0079, 08-0084, 2010 WL 5158620, at *1 (M.D. Pa. Dec. 14, 2010) (reporting that the plaintiff initially earned $425 per week)
267. Roberts v. Dolgencorp, Inc., No. 09-0005, 2010 WL 4806792, at *1 (M.D. Tenn. Nov. 18, 2010) (stating that the plaintiff made $420 per week in her first year)
268. Mayne-Harrison v. Dolgencorp, Inc., No. 09-0042, 2010 WL 3717604, at *2 (N.D. W. Va. Sept. 17, 2010) (reporting that Mayne-Harrison made $370 and $423 per week in 2001 and 2002, respectively)
269. Hartman v. Dolgencorp of Tex., Inc., No. 09-0009, slip op. at 2 (N.D. Tex. June 24, 2010) (pointing out that the store manager earned between $375 and $435 from 2000 until 2003)
270. Hale v. Dolgencorp, Inc., No. 09-0014, 2010 WL 2595313, at *3 (W.D. Va. June 23, 2010) (stating that Hale's salary ranged from $313 to $431 per week while she managed the store)
271. Noble v. Dolgencorp, Inc., No. 09-0049, slip op. at 2 (S.D. Miss. May 11, 2010) (reporting that the plaintiff initially made approximately $425 per week).
272. See CAL. CODE REGS. tit. 8, § 11070(1)(A)(1)(f) (2002) (requiring an exempt employee to "earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment")
273. plaintiffs. Dollar General has settled with the store managers in Pierce, Plaunt, Hale, and Myrick. See Pierce, No. 09-0097, slip op. at 1 (May 26, 2011) (order approving individual settlement)
274. Plaunt, No. 09-0084, slip op. at 1 (May 26 2010) (order approving individual settlement)
275. Hale, 2010 WL 4261310, at *1-2 (Oct. 28 2010) (order approving the filing of settlement under seal)
276. Myrick v. Dolgencorp, Inc., No. 09-0005 (M.D. Ga. Feb. 19, 2010) (order of dismissal) (indicating that the action has been settled). In Jones, one of the plaintiffs has reached a settlement agreement with Dollar General.
277. See Joint Stipulation of Dismissal Without Prejudice at 1, Kanatzer v. Dolgencorp, Inc., No. 09-0074 (E.D. Mo. July 26, 2010). As of October 2011, Anderson remains open.