Thomas Killion v. KeHE Distributors

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0166p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

THOMAS E. KILLION et al., ┐
Plaintiffs-Appellants, │
│
│ Nos. 13-3357/4340
v. │
>
│
KEHE DISTRIBUTORS, LLC, │
Defendant-Appellee. ┘

Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:12-cv-00470; 3:12-cv-01585—Jack Zouhary, District Judge.
Argued: June 18, 2014
Decided and Filed: July 30, 2014

Before: SILER, GILMAN, and GIBBONS, Circuit Judges.
_________________

COUNSEL

ARGUED: Robert A. Bunda, BUNDA, STUTZ & DEWITT, PLL, Perrysburg, Ohio, for
Appellants. Cardelle B. Spangler, WINSTON & STRAWN LLP, Chicago, Illinois, for
Appellee. ON BRIEF: Robert A. Bunda, Barbara E. Machin, BUNDA, STUTZ & DEWITT,
PLL, Perrysburg, Ohio, Kerry L. Morgan, Randall A. Pentiuk, PENTIUK, COUVREUR &
KOBILJAK, P.C., Wyandotte, Michigan, for Appellants. Cardelle B. Spangler, WINSTON &
STRAWN LLP, Chicago, Illinois, for Appellee.

_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. The plaintiffs in this case are numerous “sales
representatives” who are or were employed by KeHE Distributors, LLC, a food distributor based

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in Naperville, Illinois. KeHE’s management assigns each representative several stores of large
chain retailers. At their assigned stores, the representatives are responsible for stocking shelves
as well as reordering merchandise whenever a store is low on any of KeHE’s products. In 2012,
KeHE discharged a number of the plaintiffs as part of a restructuring. Four of the discharged
plaintiffs sued, claiming that KeHE had failed to pay them overtime wages as required by the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.

The plaintiffs sought to certify a collective action under 29 U.S.C. § 216(b). In response,
KeHE argued that many of the discharged employees had waived their right to participate in a
collective action by agreeing to such a waiver in their separation agreements, and that, in any
event, the plaintiffs are exempt from the overtime provisions of the FLSA because they are
classified under the statute as “outside sales employees.”

The district court upheld the validity of the waivers and certified a collective action
consisting only of employees who had not signed the agreements or who had modified their
agreements to preserve their right to participate in a collective action. A motion for
reconsideration by the plaintiffs followed. The court denied the motion, and the plaintiffs sought
an interlocutory appeal (Case No. 13-3357). With that appeal pending, the district court granted
summary judgment for KeHE, holding that all of the plaintiffs were outside sales employees and
therefore exempt from the overtime requirements of the FLSA. A second appeal to this court
followed (Case No. 13-4340).

For the reasons set forth below, we DISMISS the plaintiffs’ interlocutory appeal (Case
No. 13-3357) for lack of jurisdiction, but we AFFIRM IN PART and REVERSE IN PART the
judgment of the district court based on the second Notice of Appeal (Case No. 13-4340). We
hold that the district court erred in granting KeHE summary judgment on the
outside-sales-exemption issue and further erred in excluding from the collective action those
KeHE employees who had signed the waivers. With regard to a final issue raised by the
plaintiffs concerning the exclusion of a report by their expert witness, however, we hold that the
district court did not abuse its discretion.
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 3

I. BACKGROUND

A. Factual background

KeHE is a distributor of specialty ethnic and health foods to retailers, some of which are
independent stores and some of which are large chain stores. According to the Notice of
Collective Action, the plaintiffs are current and former “sales representatives” of KeHE “who,
since March 1, 2009, spent a majority of their work hours providing promotional services to
KeHE’s large retail chain customers in the Great Lakes Region, such as Meijer, Kroger, Giant
Eagle and Walmart.”

KeHE’s relationships with the chain stores involve multiple layers of personnel.
Typically, KeHE’s customer-development team establishes the initial relationship with such a
store. The business-development team then negotiates the broad parameters of any overarching
distribution contract. In turn, KeHE’s account-management team negotiates with the chain store
the list of products from KeHE’s 40,000-plus product catalog that are authorized for sale at each
of the customers’ stores. Account managers also help each store develop a “plan-o-gram” that
will best promote the KeHE products to be sold. A “plan-o-gram” is essentially a marketing plan
for the particular store that designates shelf spaces, identifies which products are to be placed on
the shelves, and lays out any in-store advertising plans. The account-management team then
instructs the sales representatives on the requirements of the store. Account managers also
execute “force outs” on occasion, meaning that they instruct the sales representatives to place
certain products or additional products for sale at the stores.

The sales representative is the on-the-ground contact for each individual store. Sales
representatives meet KeHE’s delivery trucks several times per week, oversee the unloading of
products into the store’s backroom, and then return to the store several times during the week to
stock KeHE’s products on the shelves from the inventory in the backroom. They also place
orders for more products based on depleted inventory, meaning that, in general, the sales
representatives are to order one additional case of products when the store has only one or two
units remaining. Finally, the sales representatives are responsible for transporting any damaged
products back to KeHE’s storage areas in their personal vehicles.
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KeHE selects its sales representatives based on their sales experience, and the plaintiffs
initially believed that their jobs would in fact entail sales. In addition to their responsibilities
with chain retailers, sales representatives are permitted to cold-call on smaller independent
retailers and solicit them to purchase KeHE products. The solicitation of such customers,
however, is primarily the responsibility of KeHE’s “Alternative Channel Department.”

Sales representatives are paid entirely on commission through a formula that KeHE’s
documents describe as “a variable compensation plan where they are paid for two types of
services, ordering and stocking.” During the earlier part of the time period in question, from
2009 to 2011, the plan was byzantine to say the least, involving a ten-step calculation complete
with discounts, mark-downs, and a calculation of profit margins on various products. By April
2011, however, KeHE appears to have simplified the system and began paying the sales
representatives commissions of 2% for stocking products on shelves, 1.4% for store
maintenance, 1% for promotional marketing (but only in independent stores), .75% for
maintaining proper inventory levels that are ordered automatically through KeHE’s own systems
or the customer’s computer systems, .10% for orders written by the sales representatives in
question, .25% for marking prices on the items (but only in the states requiring that products be
marked), .25% for rotating stock and processing credits, .15% for checking in delivered products,
and .10% for adjusting invoices if they are short, or if products are damaged.

KeHE’s sales representatives stated in their affidavits that they regularly work in excess
of 60 hours per week to complete their above-described responsibilities. But KeHE does not pay
the plaintiffs overtime because it classifies its sales representatives as exempt from the overtime
requirements of the FLSA under the “outside sales employee” exemption, 29 U.S.C. § 213(a)(1).

On February 17, 2012, KeHE discharged 69 sales representatives in the Great Lakes
Region in “a restructuring effective March 17, 2012.” KeHE notified the affected
representatives by mail and included in the mailing a separation agreement. The agreements
promised the affected employees a retention bonus of $2,000 in exchange for continuing their
work through March 17, 2012 and the employees’ agreement to “release all claims against
[KeHE] arising out of [their] employment with the Company.” In addition, the agreements
purportedly bound the employees “not to consent to become[ ] a member of any class or
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 5

collective action in a case in which claims are asserted against the Company that are related in
any way to [their] employment or the termination of [their] employment with the Company.”

B. Procedural background

Thomas Killion and Brion Haley filed this lawsuit on February 27, 2012 in the Northern
District of Ohio. They claimed that KeHE violated the FLSA by failing to pay them overtime
wages even though they regularly worked in excess of 40 hours per week. A similar lawsuit
brought by Barney Dolan and Mark Walters was consolidated with the lawsuit brought by
Killion and Haley.

In March 2012, Killion and Haley moved to conditionally certify a collective action
under the FLSA. They proposed to include in the lawsuit all KeHE sales representatives
employed between February 27, 2009 and the date of filing. The plaintiffs also moved to void
the collective-action waivers in the severance agreements for those who had signed them. With
these motions pending, Anthony Basnec consented to join the collective action.

The district court issued an initial order determining that those plaintiffs who had
modified their agreements by excising the waiver portion could join in the collective action.
Two months later, the district court issued another order refusing to void the language waiving
the right to participate in a collective action by those who had signed unmodified separation
agreements. The court also dismissed Basnec from this lawsuit because he had signed a
separation agreement containing the waiver. Shortly thereafter, the district court refused the
plaintiffs’ request that it certify an interlocutory appeal on the validity of the waivers.

The district court then conditionally certified a collective action “of KeHE sales
representatives who, since March 1, 2009, spent a majority of their work hours providing
promotional services to KeHE’s large retail chain customers in the Great Lakes Region.” This
prompted Dolan, Haley, Killion, and Walters to move for reconsideration of the earlier order
enforcing the collective-action waiver contained in the separation agreements.

In December 2012, the district court denied the motion for reconsideration. Two weeks
later, Dolan, Haley, Killion, and Walters filed a “Petition for Review” in this court. A panel of
this court construed the “Petition for Review” as a notice of appeal from the district court’s order
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 6

denying the plaintiffs’ motion for reconsideration. That appeal is now before us as Case
No. 13-3357.

While the foregoing interlocutory appeal was pending in this court, the district court
granted KeHE summary judgment on the merits of the plaintiffs’ FLSA overtime claims. It held
that the plaintiffs were properly classified as outside sales employees and therefore exempt from
the overtime requirements of the FLSA. The plaintiffs, including Basnec, then timely filed a
second Notice of Appeal. They challenge the district court’s grant of summary judgment for
KeHE on the overtime issue, its decision to enforce the collective-action waiver, and its decision
to exclude the report of the plaintiffs’ expert witness. All three of these issues will be considered
in turn.

II. LEGAL STANDARDS

A. Standard of review

We review de novo a district court’s order granting summary judgment. White v. Baptist
Mem’l Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012), cert. denied, 134 S. Ct. 296
(2013). Summary judgment is proper when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). No genuine
dispute of material fact exists when the record “taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Ultimately the court evaluates “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986). We must draw all reasonable inferences in favor of the nonmoving party in conducting
our review. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013).

Collective-action certification rulings under the FLSA are reviewed under the
abuse-of-discretion standard. White, 699 F.3d at 873. “A court abuses its discretion when it
commits a clear error of judgment, such as applying the incorrect legal standard, misapplying the
correct legal standard, or relying upon clearly erroneous findings of fact.” Jones v. Ill. Cent. R.
Co., 617 F.3d 843, 850 (6th Cir. 2010).
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 7

B. The FLSA

This case arises under the FLSA. As the Supreme Court recently explained in
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012):

Congress enacted the FLSA in 1938 with the goal of “protect[ing] all covered
workers from substandard wages and oppressive working hours.” Barrentine
v. Arkansas–Best Freight System, Inc., 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L.
Ed.2d 641 (1981); see also 29 U.S.C. § 202(a). Among other requirements, the
FLSA obligates employers to compensate employees for hours in excess of 40 per
week at a rate of 1 ½ times the employees’ regular wages. See § 207(a).

Id. at 2162.

As part of these overtime protections, the FLSA sets out the means for procuring relief.
The FLSA provides that “[a]n action to recover the liability [for unpaid overtime pay] prescribed
in either of the preceding sentences may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or more employees
for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C.
§ 216(b). “Similarly situated persons are permitted to ‘opt into’ the suit. This type of suit is
called [a] ‘collective action.’ It is distinguished from the opt-out approach utilized in class
actions under Fed.R.Civ.P. 23.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006).

We begin our analysis by considering whether the district court properly granted KeHE’s
motion for summary judgment on the outside-sales-employee issue. Because we conclude that
the district court erred in granting KeHe’s motion, we will next consider the validity of the
collective-action waivers. Finally, we will take up the issue regarding the district court’s
decision to exclude the report of the plaintiffs’ expert witness.

III. THE OUTSIDE-SALES-EMPLOYEE EXEMPTION

A. Background

The plaintiffs claim that KeHE failed to pay them overtime as required by § 207(a) of the
FLSA. KeHE responds that the plaintiffs are exempt from § 207(a) because each qualifies as an
“outside salesman” under 29 U.S.C. § 213(a)(1). This is the crux of the parties’ dispute.
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 8

In Christopher, 132 S. Ct. at 2162–63, the Supreme Court set out the relevant legal
background as follows:

The overtime compensation requirement [of the FLSA] does not apply with
respect to all employees. See § 213. As relevant here, the statute exempts
workers “employed ... in the capacity of outside salesman.” § 213(a)(1).
Congress did not define the term “outside salesman,” but it delegated authority to
the [Department of Labor (DOL)] to issue regulations “from time to time” to
“defin[e] and delimi[t]” the term. Ibid.

The Court also set forth the background of three of the regulations issued by the DOL:

Three of the DOL’s regulations are directly relevant to this case: §§ 541.500,
541.501, and 541.503. We refer to these three regulations as the “general
regulation,” the “sales regulation,” and the “promotion-work regulation,”
respectively.
The general regulation sets out the definition of the statutory term “employee
employed in the capacity of outside salesman.” It defines the term to mean “any
employee ... [w]hose primary duty is ... making sales within the meaning of [29
U.S.C. § 203(k)]” and “[w]ho is customarily and regularly engaged away from the
employer’s place or places of business in performing such primary duty.”
§§ 541.500(a)(1)–(2). The referenced statutory provision, 29 U.S.C. § 203(k),
states that “ ‘[s]ale’ or ‘sell’ includes any sale, exchange, contract to sell,
consignment for sale, shipment for sale, or other disposition.” Thus, under the
general regulation, an outside salesman is any employee whose primary duty is
making any sale, exchange, contract to sell, consignment for sale, shipment for
sale, or other disposition.
The sales regulation restates the statutory definition of sale discussed above and
clarifies that “[s]ales within the meaning of [29 U.S.C. § 203(k)] include the
transfer of title to tangible property, and in certain cases, of tangible and valuable
evidences of intangible property.” 29 C.F.R. § 541.501(b).
Finally, the promotion-work regulation identifies “[p]romotion work” as “one
type of activity often performed by persons who make sales, which may or may
not be exempt outside sales work, depending upon the circumstances under which
it is performed.” § 541.503(a). Promotion work that is “performed incidental to
and in conjunction with an employee’s own outside sales or solicitations is
exempt work,” whereas promotion work that is “incidental to sales made, or to be
made, by someone else is not exempt outside sales work.” Ibid.

(Footnotes omitted.)

In addition to the regulations identified by the Supreme Court in Christopher, two other
DOL regulations bear on the present case. The first is 29 C.F.R. § 541.700, which instructs that
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 9

[t]o qualify for exemption under this part, an employee’s “primary duty” must be
the performance of exempt work. . . . Determination of an employee’s primary
duty must be based on all the facts in a particular case, with the major emphasis
on the character of the employee’s job as a whole. Factors to consider when
determining the primary duty of an employee include, but are not limited to, the
relative importance of the exempt duties as compared with other types of duties;
the amount of time spent performing exempt work; the employee’s relative
freedom from direct supervision; and the relationship between the employee’s
salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.

Id. § 541.700(a). “The amount of time spent performing exempt work can be a useful guide in
determining whether exempt work is the primary duty of an employee.” Id. § 541.700(b).

Also relevant to this case is 29 C.F.R. § 541.504, titled “Drivers who sell,” which both
parties agree provides a close analogy to the considerations at issue. That regulation specifies as
follows:

(a) Drivers who deliver products and also sell such products may qualify as
exempt outside sales employees only if the employee has a primary duty of
making sales. In determining the primary duty of drivers who sell, work
performed incidental to and in conjunction with the employee’s own outside sales
or solicitations, including loading, driving or delivering products, shall be
regarded as exempt outside sales work.
(b) Several factors should be considered in determining if a driver has a primary
duty of making sales, including, but not limited to: a comparison of the driver’s
duties with those of other employees engaged as truck drivers and as salespersons;
possession of a selling or solicitor’s license when such license is required by law
or ordinances; presence or absence of customary or contractual arrangements
concerning amounts of products to be delivered; description of the employee’s
occupation in collective bargaining agreements; the employer’s specifications as
to qualifications for hiring; sales training; attendance at sales conferences; method
of payment; and proportion of earnings directly attributable to sales.

Id. § 541.504(a), (b). The Supreme Court has also instructed that “exemptions in the Fair Labor
Standards Act are to be narrowly construed against the employers seeking to assert them.”
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 879 n.7 (2014) (internal quotation marks omitted).

This court has addressed the general regulation on outside-sales employees only once. In
Hodgson v. Klages Coal & Ice Co., 435 F.2d 377 (6th Cir. 1970), the court considered the
applicability of the outside-sales-employee exemption to a cola-bottling company’s “routemen.”
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 10

Id. at 383. The routemen serviced retail outlets and vending machines along routes delineated by
the bottler. Of the sales to retailers, approximately 60% were attributable to chain stores. The
bottler entered contracts with such chain stores at a higher management level—generally
between store managers and the bottler’s route managers. In turn, the “routemen’s function
inside the store ordinarily [was] to survey the shelves allocated to his products, determine how
many cases would be needed to refill them, and then restock the shelves accordingly from the
stock carried on his truck.” Id. at 379–80.

Based on these facts, this court concluded that the routemen were not outside sales
employees within the meaning of the FLSA. Id. at 383. The Hodgson court first noted that
“[t]here [was] no evidence that routemen participate in or influence the initial decision to buy or
the volume of purchases.” Id. And once management made the initial purchasing decision,

[e]vidence shows that the bulk of the routemen’s time in servicing the retail chain
accounts, which amount to 60 per cent of appellee’s annual dollar volume,
consists essentially of restocking the shelves and removing empties on a regular
weekly basis in each store on the route. The familiarity of most drivers with the
probable needs of each store on their routes enables them to stock their trucks
accordingly in advance of calling on the stores. Thus, the routemen do not solicit
orders and return with stock; they restock a volume requirement initially
determined by the customer without their intervention.

Id.

The Hodgson court also emphasized that the employer offered “no evidence that [the
routemens’] solicitations [of additional shelf space] ever affected [sic] a significant increase in
sales to a store independently of significant increases in consumer demand for appellee’s
products or the presence of an advertising promotion authorized by the chain which required
additional stock.” Id. Finally, the court noted that “it cannot be said on the evidence that the
regular job of the routemen was to open up new accounts.” Id. at 384. This fact, too, militated
against applying the overtime exemption to the routemen. Id. Against this background, we now
turn to the facts of the present case.
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B. Application

This case turns on two questions: (1) do the plaintiffs make sales, and, (2) if so, is
making sales their primary duty? We conclude that the district court committed two major errors
in answering these questions. First, the district court erroneously concluded that the plaintiffs’
reordering of merchandise constitutes a “sale” for FLSA purposes as a matter of law. Second,
the district court incorrectly held that there is no genuine dispute of material fact as to whether
making sales is the primary duty of the plaintiffs. We will now discuss the evidence on both
questions that necessitates a jury trial.

1. Do the plaintiffs make sales?
a. Christopher’s import

KeHE, in line with the analysis of the district court, argues that Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156 (2012), compels the conclusion that the plaintiffs made “sales”
within the meaning of the FLSA. We disagree. Christopher required the Supreme Court “to
decide whether the term ‘outside salesman,’ as defined by the Department of Labor . . . ,
encompasses pharmaceutical sales representatives.” Id. at 2161. Specifically, the case posed the
question of whether “nonbinding commitments from physicians to prescribe [certain]
prescription drugs in appropriate cases” constituted a “sale” for FLSA purposes. Id.

The Supreme Court first noted that the FLSA states that the term “‘[s]ale’ or ‘sell’
includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other
disposition.” Id. at 2176 (quoting 29 U.S.C. § 203(k)) (alterations in original). Focusing on the
term “other disposition,” the Court reasoned that, “we are hard pressed to think of any contract
for the exchange of goods or services in return for value or any firm agreement to buy that would
not also fall within [the Act’s] specifically enumerated categories.” Id. at 2171. Accordingly,
the Court concluded that “‘other disposition’ is most reasonably interpreted as including those
arrangements that are tantamount, in a particular industry, to a paradigmatic sale of a
commodity.” Id. at 2171–72. It then determined that “in the unique regulatory environment
within which pharmaceutical companies must operate,” “[o]btaining a nonbinding commitment
from a physician to prescribe one of respondent’s drugs” would constitute a sale for FLSA
purposes. Id. at 2172.
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 12

The present case does not involve a “unique regulatory environment.” Nor does this case
involve the term “other disposition,” such as a “nonbinding commitment.” We therefore find
Christopher of limited import to the questions that this case poses. With that in mind, we turn to
the question of who actually sells KeHE’s products for FLSA purposes.

b. A jury could conclude that the plaintiffs do not make sales

Four sets of employees are involved in selling KeHE’s products: (1) the
customer-development team that establishes the initial relationship with a store; (2) the
business-development team that negotiates the broad parameters of the overarching distribution
contract; (3) the account managers, who determine which products will be sold in the chain
stores and who are responsible for growing sales and presenting everything that is needed to
increase those sales; and (4) the sales representatives, who provide store support by determining
the quantities of KeHE products to be ordered and who write and transmit orders for subsequent
delivery in order to maintain proper inventory levels. In addition, sales representatives cold-call
on independent stores and choose the mix of KeHE products to be sold there.

Although the plaintiffs input orders for KeHE’s products, they presented substantial
evidence that the KeHE account managers actually control the volume through “plan-o-grams”
and restrictions on reordering. KeHE’s “Sales Rep Expectations and Goals” document bolsters
the plaintiffs’ argument by noting that on “90% of all items, your reorder points will be 1 to 2
units.” Deposition testimony further indicates that the plaintiffs are generally unsuccessful in
soliciting more shelf space (and thus more orders) because they are typically limited to displays
prearranged and “plan-o-grammed” by KeHE’s account manager for that particular chain store.
As one witness put it, his “shelf strip couldn’t change until corporate would change it.”

A jury could conclude from this evidence and deposition testimony that the plaintiffs do
not actually make KeHE’s sales. The fact that the plaintiffs hit the order buttons on their
electronic devices, in other words, is not enough to magically transform their jobs from inventory
management to “sales.” This court’s decision in Hodgson v. Klages Coal & Ice Co., 435 F.2d
377 (6th Cir. 1970), emphasized that the defendant offered “no evidence that [the routemens’]
solicitations [of additional shelf space] ever affected [sic] a significant increase in sales to a store
independently of significant increases in consumer demand for appellee’s products or the
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 13

presence of an advertising promotion authorized by the chain which required additional stock.”
Id. at 383. The evidence here is, at the very least, in conflict on this point. We therefore
conclude that the district court erred in determining that the plaintiffs make “sales” as a matter of
law.

2. Is making sales the plaintiffs’ primary duty?

Even assuming arguendo that the plaintiffs’ reordering activities are “sales” within the
meaning of the FLSA, the question remains as to whether such “sales” are their primary duty.
Three major considerations work to the plaintiffs’ advantage.

First, it appears that the vast majority of the plaintiffs’ time is spent stocking and cleaning
shelves. “The amount of time spent performing exempt work can be a useful guide in
determining whether exempt work is the primary duty of an employee.” 29 C.F.R. § 541.700(b).
According to memos drafted by KeHE’s management, the plaintiffs’ jobs consist of
(1) “Ordering,” meaning that sales representatives are “to write orders which maintain proper
inventory levels”; (2) “Stocking of Product,” meaning that the sales representatives are to keep
the product “in neat straight rows. Product to the front edge and evenly faced to the minimum
depth of 3 units. . . . Labels faced forward, and all products dusted when stocking and
conditioning.”; (3) maintaining “Backroom Conditions,” meaning that sales representatives
replenish the backroom stock at least weekly; (4) “Control of Dates,” meaning that sales
representatives ensure that expired products are not on the store’s shelves); (5) “Reconciliation
of Invoices,” meaning the adjustment of invoices if they are short; and (6) “Bottom of Invoice,”
meaning that sales representatives are to review products that the store has run out of and
determine what adjustments are necessary.

From this broad range of responsibilities alone, a jury could conclude that making sales is
not the primary responsibility of the plaintiffs. Further, the district court observed that the
“Plaintiffs spent the majority of their time on tasks other than writing orders.” This finding
militates against exempting the sales representatives from the FLSA’s overtime requirements.

Second, the plaintiffs’ compensation is primarily based on stocking shelves. Since April
2011, KeHE’s sales representatives are paid commissions of 2% for stocking products on
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 14

shelves, 1.4% for store maintenance, 1% for promotional marketing (but only in independent
stores), .75% for maintaining proper inventory levels that are ordered automatically through
KeHE’s own systems or the customer’s computer systems, .10% for orders written by the sales
representatives in question, .25% for marking prices on the items (but only in the states requiring
that products be marked), .25% for rotating stock and processing credits, .15% for checking in
delivered products, and .10% for adjusting invoices if they are short, or if products are damaged.

The plaintiffs are thus paid 68% of their total compensation for stocking shelves and store
maintenance (3.4% out of 5%). This fact could permit a jury to conclude that the plaintiffs’
primary responsibility is inventory management rather than sales.

Third, the evidence indicates that even if the foregoing activities are considered
“promotional work” within the meaning of 29 C.F.R. § 541.503, this work could be seen to be in
furtherance of sales made by the account managers rather than in furtherance of the plaintiffs’
own sales. Whether promotional work is exempt outside-sales work depends on whether the
work “is actually performed incidental to and in conjunction with an employee’s own outside
sales or solicitations” or is instead “incidental to sales made, or to be made, by someone else.”
29 C.F.R. § 541.503(a) (emphases added).

KeHE’s own internal documents offer evidence that the sales representatives’
promotional activities are actually directed at increasing sales by the account managers. For
example, one internal memorandum instructs the sales representatives to “Manage your accounts
as if you owned them.” (emphasis added) This memorandum accords with deposition testimony
indicating that account managers “are responsible for growing sales and presenting everything
that is needed to grow those sales.” From this evidence, a jury could conclude that the plaintiffs’
promotional work was not done in support of their own outside sales, but instead in support of
the account managers’ sales.

Subsection (c) of 29 C.F.R. § 541.503 addresses a hypothetical situation involving

a company representative who visits chain stores, arranges the merchandise on
shelves, replenishes stock by replacing old with new merchandise, sets up
displays and consults with the store manager when inventory runs low, but does
not obtain a commitment for additional purchases. The arrangement of
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 15

merchandise on the shelves or the replenishing of stock is not exempt work unless
it is incidental to and in conjunction with the employee’s own outside sales.

On remand, a jury should determine whether the arrangement of merchandise on the shelves and
the replenishing of stock by the plaintiffs is “incidental to and in conjunction with [their] own
outside sales,” see id. § 541.503(a), or is in furtherance of the sales by someone else. The district
court erred in concluding that the plaintiffs’ promotional work was in support of their own sales
as a matter of law.

3. The district court erroneously discounted 29 C.F.R. § 541.504
In determining whether the plaintiffs make sales and whether such sales are the plaintiffs’
primary duty, the district court refused to consider the “Drivers who sell” regulation, 29 C.F.R.
§ 541.504, and evidence related to the nine factors identified therein. The plaintiffs contend that
this was error. We agree. And KeHE appears to agree as well. KeHE relies heavily upon
Ackerman v. Coca-Cola Enterprises, Inc., 179 F.3d 1260 (10th Cir. 1999), to assert that the
plaintiffs made sales and that they were outside-sales employees. Central to the Ackerman
court’s evaluation of these issues was its determination that “[t]he plaintiffs . . . resemble the
exempt ‘driver salesman’ identified in 29 C.F.R. § 541.505(d) [now codified at 29 C.F.R.
§ 541.504].” Ackerman, 179 F.3d at 1266. We thus have little difficulty in concluding that the
district court should have taken 29 C.F.R. § 541.504 into account in this case and considered
evidence relevant to the factors identified therein. (Neither party contends that the regulation is
controlling, and we need not decide its exact scope in this case.)

According to 29 C.F.R.§ 541.504(b), “[s]everal factors should be considered in
determining if a driver has a primary duty of making sales.” Those factors are

a comparison of the driver’s duties with those of other employees engaged as
truck drivers and as salespersons; possession of a selling or solicitor’s license
when such license is required by law or ordinances; presence or absence of
customary or contractual arrangements concerning amounts of products to be
delivered; description of the employee’s occupation in collective bargaining
agreements; the employer’s specifications as to qualifications for hiring; sales
training; attendance at sales conferences; method of payment; and proportion of
earnings directly attributable to sales.

29 C.F.R. § 541.504(b).
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 16

A brief evaluation of several of these factors yields conflicting determinations. With
regard to “customary or contractual arrangements concerning amounts of products to be
delivered,” the account managers determine which of KeHE’s 40,000 products will be sold in the
chain stores. And after the account managers make this determination, the district court found
that the plaintiffs “typically based [reordering decisions] on a product’s anticipated sales [where]
KeHE had a suggested ordering guideline known as ‘case plus two’ for slower selling items,
which meant representatives were advised to order more product when only two items remained
on the shelf.”

This situation is addressed in 29 C.F.R. § 541.504(d)(2):

Drivers who generally would not qualify as exempt outside sales employees
include: . . . A driver who often calls on established customers day after day or
week after week, delivering a quantity of the employer’s products at each call
when the sale was not significantly affected by solicitations of the customer by
the delivering driver or the amount of the sale is determined by the volume of the
customer’s sales since the previous delivery.

So too here. This consideration therefore militates against exempting the plaintiffs from the
FLSA’s overtime requirements.

On the other hand, several factors identified by 29 C.F.R. § 541.504(b) favor KeHE. For
example, “the employer’s specifications as to qualifications for hiring” works to KeHE’s benefit.
The district court determined that “[w]hen Plaintiffs were hired, they generally understood they
were accepting a sales position and thought their prior sales experience helped them get the job
with KeHE.”

On remand, the district court should entertain evidence regarding as many of the nine
factors identified in 29 C.F.R.§ 541.504(b) as it determines are relevant to this case. And a jury
should determine which way these factors tilt.

4. KeHE’s reliance on Ackerman v. Coca-Cola Enterprises is unavailing

KeHE resists the conclusion that the § 541.504(b) factors raise a jury issue and argues
that Ackerman holds to the contrary. We reject this contention for two reasons. First, Ackerman
is a Tenth Circuit case with facts very similar to those in Hodgson v. Klages Coal & Ice Co.,
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 17

435 F.2d 377 (6th Cir. 1970). To the extent that Ackerman differs from this court’s decision in
Hodgson, we are bound to follow Hodgson. KeHE argues that “Hodgson is inapposite because
the regulatory scheme involved was specific to driver salesmen and does not apply to the general
outside sales exemption.” But Ackerman also involved the driver-salesmen regulation. See
173 F.3d at 1266–67. Furthermore, unlike in this case and unlike in Hodgson, the Ackerman
court found “no evidence in the record that sales of Coca-Cola products at stores visited by the
plaintiffs were made by any other Coca-Cola employees.” Id. at 1266. KeHE’s reliance on
Ackerman is thus unavailing in light of Hodgson.

We also question KeHE’s reliance on Ackerman for a second reason. The Tenth Circuit
decided Ackerman in 1999. But the Department of Labor promulgated the current version of
29 C.F.R. § 541.504 in 2004. Until 2004, the regulation governing “Driver salesmen” was
codified at 29 C.F.R.§ 541.505 and stated that “a determination of whether the driver is actually
employed for the purpose of, is customarily and regularly engaged in, and has as his chief duty
and primary function the making of sales, may involve consideration of such factors as” those
codified under the regulation. Id. § 541.505(e) (1973) (emphasis added). The 2004 amendments
altered this language so that it now states that these factors “should be considered in determining
if a driver has a primary duty of making sales.” 29 C.F.R. § 541.504 (emphasis added). This
change is an indication of the Department of Labor’s intent to require the courts to consider all of
the nine factors identified by the regulation—something that Ackerman did not do. Compare
Meza v. Intelligent Mexican Mktg., Inc., 720 F.3d 577, 583–84 (5th Cir. 2013) (considering each
of the nine factors identified by 29 C.F.R. 541.504(b)), with Ackerman, 179 F.3d at 1267–68
(considering only some of the factors delineated by 29 C.F.R. 541.505(e) (1999)). This point
need not be decided in the present case, however, because we agree with both parties that the
regulation offers only persuasive rather than controlling authority with regard to the facts before
us.

In sum, to the extent that Ackerman conflicts with Hodgson, we are bound to follow
Hodgson. And to the extent that Ackerman did not consider the applicability of each of the nine
factors identified in 29 C.F.R. § 541.504(b), we have doubts that Ackerman remains good law.
Ackerman therefore at most suggests that the district court should consider evidence relevant to
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 18

the nine factors identified in 29 C.F.R. § 541.504(b). We have already determined that the
district court should take this course on remand. Accordingly, we find Ackerman of little
persuasive value with regard to this case.

C. Conclusion

“Whether employees are exempt from the requirements of the [FLSA] is primarily a
question of fact.” Hodgson, 435 F.2d at 382. “An employer seeking an exemption from the
overtime requirements of the [FLSA] must prove that each employee is entitled to the exemption
by plain and unmistakable evidence.” Id. Because the evidence could allow a jury to find that
the plaintiffs did not make sales or that making sales was not their primary duty, we cannot
resolve this issue as a matter of law; instead, a jury must make this evaluation. In doing so, the
jury should consider as many of the nine factors identified in 29 C.F.R. § 541.504(b) as the
district court determines are relevant to this case.

IV. VALIDITY OF THE COLLECTIVE-ACTION WAIVERS

The plaintiffs also appeal the district court’s order refusing to reconsider its August 3,
2012 ruling that conditionally certified the plaintiffs’ collective action. They argue that the court
improperly excluded employees who had signed unmodified separation agreements that
purported to “give up any right to become . . . a member of any class or collective action in a
case in which claims are asserted against [KeHE] that are related in any way to [their]
employment or the termination of [their] employment with the Company.”

KeHE responds that we lack jurisdiction over this issue because conditional-certification
orders are not collaterally appealable, that the plaintiffs lack standing to assert the rights of those
not part of the conditionally certified collective action, and that, in any event, the separation
agreements are valid contracts. We will first consider whether we have jurisdiction and will then
address the merits of the issue.
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 19

A. Jurisdiction

1. Appellate jurisdiction

Title 28, section 1291 of the United States Code grants this court jurisdiction over “final
decisions of the district courts.” Notwithstanding this general rule, a party may appeal decisions
that “finally determine claims of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949).

“[A] conditional [certification] order approving notice to prospective co-plaintiffs in a
suit under § 216(b) [of the FLSA] is not appealable.” Comer v. Wal-Mart Stores, Inc., 454 F.3d
544, 549 (6th Cir. 2006). And the district court’s denial of the plaintiffs’ motion for
reconsideration does not alter this conclusion. “The denial of a motion to reconsider an earlier
order is not an immediately appealable collateral order because it does not conclusively
determine the disputed question, it merely resolves whether to revisit an important issue rather
than the issue itself, and it is reviewable following final judgment.” United States v.
Gomez-Gomez, 643 F.3d 463, 469 (6th Cir. 2011). This rule of procedure applies even when the
underlying order for which the party seeks reconsideration would itself have been collaterally
appealable. Id. We therefore dismiss Case No. 13-3357 because we lack jurisdiction over that
interlocutory appeal.

Nonetheless, we have jurisdiction to consider the validity of the waivers under the second
Notice of Appeal, Case No. 13-4340, which was filed on November 6, 2013. “[W]e will
entertain arguments on all objections and asserted errors prior to the final disposition of a case if
a party indicates in its notice of appeal that it appeals either the final judgment or the final order
in the case.” Caudill v. Hollan, 431 F.3d 900, 906 (6th Cir. 2005).

Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure specifies that the notice of
appeal must “designate the judgment, order, or part thereof being appealed.” This court has
interpreted Rule 3(c)(1)(B) to mean that “[a]n appeal referencing an order that directs entry of
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 20

judgment in a case is a sufficient equivalent to appealing the judgment itself, even though the
judgment is entered as a separate document.” Caudill, 431 F.3d at 905.

The plaintiffs’ Notice of Appeal filed after final judgment appeals “from The
Memorandum, Opinion and Order Granting Defendant Summary Judgment and Granting
Defendant’s Motion to Exclude Expert Report entered in this action on the 9th day of October,
2013.” That order “grant[ed] Defendant’s Motion for Summary Judgment . . . and enter[ed] final
judgment in favor of Defendant.” Plaintiffs’ Notice of Appeal therefore qualifies as an appeal
from the final judgment, permitting us to entertain appellate jurisdiction over the order
conditionally certifying plaintiffs’ collective action. See Caudill, 431 F.3d at 904. Accordingly,
we have jurisdiction to consider the collective-action waivers.

2. Standing

KeHE next argues that the plaintiffs who modified their severance agreements to exclude
the collective-action waiver or who did not sign the severance agreement at all lack standing to
appeal on behalf of those whom the district court excluded from the collective action. The
plaintiffs respond that they have standing to assert that employees who signed unmodified
separation agreements should be allowed to opt in to the collective action because the FLSA
gives employees the right “to bring a collective action on behalf of others, and thus to assert
claims, such as the invalidity of the waivers, on behalf of their fellow workers.” This court has
not yet addressed whether employees in a collective action may assert the rights of those
excluded from the lawsuit.

We have no need to decide that issue here because jurisdiction exists by virtue of the fact
that the second Notice of Appeal was brought in part by plaintiff Basnec. Basnec had signed an
unmodified separation agreement, causing the district court to dismiss him from the collective
action. Accordingly, Basnec has standing to challenge the validity of the collective-action
waiver that he signed.

B. Validity of the waivers

This brings us to the merits regarding the validity of the unmodified collective-action
waivers. The plaintiffs argue that this court’s decision in Boaz v. FedEx Customer Information
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 21

Services, Inc., 725 F.3d 603 (6th Cir. 2013), controls because it holds that an employee will not
be bound by a contract entered into with his employer that has the effect of limiting his rights
under the FLSA. In response, KeHE argues that cases upholding agreements that require
employees to submit to arbitration on an individual basis are more on point. No court of appeals
appears to have squarely addressed this issue outside of the arbitration context.

This court’s decision in Boaz provides the relevant framework for the issue before us. In
Boaz, the plaintiff-employee signed an employment agreement that contained a provision
requiring her to bring any legal action against the defendant-employer within “6 months from the
date of the event forming the basis of [the] lawsuit.” Id. at 605. When the plaintiff filed an
FLSA lawsuit after the six-month time period had elapsed, the defendant moved for summary
judgment, arguing that her claims were untimely under the employment agreement.

This court disagreed. It first noted that “[s]hortly after the FLSA was enacted,
the Supreme Court expressed concern that an employer could circumvent the Act’s
requirements—and thus gain an advantage over its competitors—by having its employees waive
their rights . . . to minimum wages, overtime, or liquidated damages.” Id. at 605–06. The Boaz
court concluded that because the waiver of the statutory-limitations period would have deprived
the plaintiff of her FLSA rights, the provision was invalid. Id. at 606. It also rejected the
defendant’s argument that a plaintiff may waive procedural rights under the FLSA, just not
substantive ones. Id. Finally, the court distinguished cases enforcing an employee’s agreement
to arbitrate his or her claims on an individual basis due to the strong federal presumption in favor
of arbitration. Id. at 606–07 (distinguishing Floss v. Ryan’s Family Steak Houses Inc., 211 F.3d
306 (6th Cir. 2000), on that basis).

Boaz therefore implies that a plaintiff’s right to participate in a collective action cannot
normally be waived. The court clearly said that “[a]n employment agreement cannot be utilized
to deprive employees of their statutory [FLSA] rights.” Id. (alteration in original) (internal
quotation marks omitted). And “Congress has stated its policy that ADEA plaintiffs [and thus
FLSA plaintiffs because the statutory language is identical] should have the opportunity to
proceed collectively.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). We have
little reason to think that the right to participate in a collective action should be treated any
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 22

differently than the right to sue within the full time period allowed by the FLSA. The concern,
Boaz explained, is that “an employer could circumvent the Act’s requirements—and thus gain an
advantage over its competitors—by having its employees waive their rights under the Act.”
725 F.3d at 605.

We are aware, of course, that the considerations change when an arbitration clause is
involved. Boaz explained that “an employee can waive his right to a judicial forum only if the
alternative forum allow[s] for the effective vindication of [the employee’s] claim.” Id. at 606–07
(alteration in original) (internal quotation marks omitted). Arbitration, it noted, is such a forum.
Id. at 606. But this line of precedents is of only minimal relevance here because the plaintiffs’
collective-action waivers in this case contained no arbitration clause. And, in any event, none of
our precedents permitting arbitration of FLSA claims has addressed employees’ collective-action
rights.

KeHE nonetheless points to cases from other circuits enforcing agreements to arbitrate
FLSA claims on an individual basis. As KeHE notes, the Eleventh Circuit recently addressed the
jurisprudence of the courts of appeals on collective-action waivers in the arbitration context in
Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014). It determined that

all of the circuits to address this issue have concluded that § 16(b) does not
provide for a non-waivable, substantive right to bring a collective action. See
Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296–97 & n. 6 (2d Cir. 2013)
(determining that the FLSA does not contain a “contrary congressional command”
that prevents an employee from waiving his or her ability to proceed collectively
and that the FLSA collective action right is a waivable procedural mechanism);
Owen [v. Bristol Care, Inc.], 702 F.3d [1050,] 1052–53 [(8th Cir. 2013)]
(determining that the FLSA did not set forth a “contrary congressional command”
showing “that a right to engage in class actions overrides the mandate of the FAA
in favor of arbitration”); Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294,
298 (5th Cir. 2004) (rejecting the plaintiffs’ claim that their inability to proceed
collectively deprived them of a substantive right to proceed under the FLSA
because, in Gilmer [v. Interstate/Johnson Lane Corp., 500 U.S. 29 (1991)], the
Supreme Court rejected similar arguments regarding the ADEA); Adkins [v.
Labor Ready, Inc.], 303 F.3d [496,] 503 [(4th Cir. 2002)] (determining that a
plaintiff failed to point to any “suggestion in the text, legislative history, or
purpose of the FLSA that Congress intended to confer a non-waivable right to a
class action under that statute” and that the plaintiff’s “inability to bring a class
action, therefore, cannot by itself suffice to defeat the strong congressional
preference for an arbitral forum”); cf. D.R. Horton [v. NLRB], 737 F.3d [344,] 362
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 23

[(5th Cir. 2013)] (determining that the National Labor Relations Act does not
contain a contrary congressional command overriding the application of the
FAA).

Id. at 1336. The Eleventh Circuit then joined this emerging consensus. Id. Crucially, however,
the respective waiver agreements in all of the above-cited cases included provisions subjecting
the employees to arbitration. See Walthour, 745 F.3d at 1330 (noting the existence of an
arbitration agreement between the parties); Sutherland, 726 F.3d at 296 (same); Owen, 702 F.3d
at 1052 (same); Carter, 362 F.3d at 298 (same); Adkins, 303 F.3d at 498 (same).

These circuit decisions, in turn, rely on the Supreme Court’s decisions in Gilmer,
500 U.S. at 35 (“We conclude that Gilmer has not met his burden of showing that Congress, in
enacting the ADEA, intended to preclude arbitration of claims under that Act.”), and American
Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2309 (2013) (holding that “[n]o
contrary congressional command requires us to reject the waiver of class arbitration here”). See
Walthour, 745 F.3d at 1331 (citing Gilmer and Italian Colors); Sutherland, 726 F.3d at 296
(quoting Italian Colors); Carter, 362 F.3d at 298 (citing Gilmer); Adkins, 303 F.3d at 502 (citing
Gilmer). Accordingly, none of the foregoing authorities speak to the validity of a collective-
action waiver outside of the arbitration context.

Because no arbitration agreement is present in the case before us, we find no
countervailing federal policy that outweighs the policy articulated in the FLSA. The rationale of
Boaz is therefore controlling. Boaz is based on the general principle of striking down restrictions
on the employees’ FLSA rights that would have the effect of granting their employer an unfair
advantage over its competitors. Requiring an employee to litigate on an individual basis grants
the employer the same type of competitive advantage as did shortening the period to bring a
claim in Boaz. And in cases where each individual claim is small, having to litigate on an
individual basis would likely discourage the employee from bringing a claim for overtime wages.
Boaz therefore controls the result here where arbitration is not a part of the waiver provision.

V. EXCLUSION OF THE REPORT OF THE PLAINTIFFS’ EXPERT WITNESS

In addition to the more determinative issues discussed above, the plaintiffs argue that the
district court abused its discretion when it struck the report of their expert witness, Karen
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 24

Dulaney Smith, whom the plaintiffs termed a “liability expert.” The district court decided that
the report “reads as a legal brief” and therefore “runs afoul of the Sixth Circuit’s guidance in
Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994), which permits experts to opine on
and embrace factual issues, not legal ones.” (Dist. Court Op. at 18). We will briefly address the
plaintiffs’ objection.

This court reviews the district court’s evidentiary rulings under the abuse-of-discretion
standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). Generally, “[r]elevant evidence is
admissible.” Fed. R. Evid. 402. And expert witnesses

may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.

Fed. R. Evid. 702. Expert testimony may also “embrace[] an ultimate issue.” Fed R. Evid.
704(a). It may not, however, “define legal terms.” Berry, 25 F.3d at 1353.

We conclude that the district court did not abuse its discretion under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), when it excluded the report in question.
Daubert interpreted Rule 702 of the Federal Rules of Evidence to permit a district court to
perform a “gatekeeping” function with regard to expert testimony, a function not limited solely
to scientific testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999). This
function is, fundamentally, “to decide whether this particular expert had sufficient specialized
knowledge to assist the jurors in deciding the particular issues in the case.” Id. at 156 (internal
quotation marks omitted).

The district court acted within its discretion when it concluded that the expert’s report in
this case offers no such specialized knowledge. Among the report’s contents is the recitation of
legal principles, which is not appropriate expert testimony. See Berry, 25 F.3d at 1353. And the
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 25

discussion of interviews with several of the plaintiffs is hearsay admissible only on
cross-examination, see Fed. R. Evid. 703, and presumably cumulative of the witnesses’ eventual
first-hand testimony. This leaves only a cursory analysis of how the plaintiffs spent their
working time as gathered from the interviews. Under these circumstances, we find no abuse of
discretion in the district court’s conclusion that the expert’s analysis is not the kind of specialized
knowledge that would assist the jury.

The district court also did not abuse its discretion when it determined that Smith’s report
runs afoul of Berry. Although the report contains permissible conclusions embracing the
ultimate issue, it also contains impermissible legal conclusions. The report seeks to define the
term “incidental,” for example, and then opines that “[t]he[ non-exempt] work was not incidental
to the sales representatives making their own sales.” Likewise, the report seeks to compare
“[t]he specific issues that are explored in this case” with issues “raised to the Administrator
during the rule making process for the 2004 revision.” Finally, the report seeks to characterize
the Department of Labor’s view of the regulations defining outside sales.

These are plainly attempts to define legal terms. Although these references do not
comprise the majority of the report, they are sufficient to support the conclusion that the district
court acted within its discretion in excluding the same. See Summerland v. Cnty. of Livingston,
240 F. App’x 70, 81 (6th Cir. 2007) (“Therefore, because experts may only state[ ] opinions that
suggest the answer to the ultimate issue or that give the jury all the information from which it can
draw inferences as to the ultimate issue[,] and because Donaldson’s report goes beyond this point
(many times over), the district court’s decision to strike his entire report was not erroneous.”)
(alteration in original) (internal quotation marks omitted).

VI. CONCLUSION

For all of the reasons set forth above, we DISMISS the plaintiffs’ interlocutory appeal
(Case No. 13-3357) for lack of jurisdiction, but we AFFIRM IN PART and REVERSE IN
PART the judgment of the district court based on the second Notice of Appeal (Case No. 13-
4340). We hold that the district court erred in granting KeHE summary judgment on the outside-
sales-exemption issue and further erred in excluding from the collective action those KeHE
Nos. 13-3357/4340 Killion et al. v. KeHE Distrib., LLC Page 26

employees who had signed the waivers. With regard to the exclusion of the report by the
plaintiffs’ expert witness, however, we hold that the district court did not abuse its discretion.