Jottings By An Employer's Lawyer

Sunday, June 05, 2005

Even Under the Old Regs; Nuclear Plant Workers Are Exempt

Although much ink has been spent on the new white collar regulations under the FLSA, courts are still (and probably will be for awhile), making determinations under the old regs. Most recently, in Kennedy v. Commonwealth Edison Co. (7th Cir. 6/2/05) [pdf] the Court applied its typical common sense view and clear language in holding that several different groups of employees at ConEd's nuclear plants all were properly classified as exempt by virtue of the administrative exemption.

Among the plaintiffs' arguments that fell to the wayside on the question of whether they were paid on a salary basis - payment of additional wages based on hours is fine, an email that indicated they were subject to Snow Days and possible deductions, where the only thing that ever happened was loss of a leave day, not a salary deduction was not a problem, and a few deductions, all promptly rectified fell within the permitted window of correction.

The Court also took on the dreaded (for employers) administration/production dichotomy finding it not a problem, since the jobs in question either involved the actual planning of repairs (as opposed to actually doing them), directing others to do jobs, which the Court finds by definition to be "of substantial importance to the management ... of a business," or clearly administrative such as purchasing and regulatory compliance.

Finally, all of the jobs involved the use of "discretion and independent judgment." The Court strikes down the general argument that because a nuclear plant is so regulated and controlled, that almost no employee could exercise discretion and independent judgment, finding only that their energies "may be channeled" in a direction by the regulations, analogizing it to a tax lawyer constrained to work within the confines of the Internal Revenue Code. And the individual arguments with respect to their individual jobs fared no better.

In addition to making ConEd happy, the decision serves as a good model for the common sense application of regulations which in lesser hands (or minds) have often become hopelessly complex, and more grist for my argument that the change in the rules was not that a big a deal.


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