Morgan v. Family Dollar Stores, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 16, 2008
No. 07-12398
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 01-00303-CV-UWC-W

JANICE MORGAN,
BARBARA RICHARDSON,
on behalf of themselves and all others similarly
situated, et al.,

Plaintiffs-Appellees,

versus

FAMILY DOLLAR STORES, INC.,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(December 16, 2008)
(As Amended December 22, 2008)

Before DUBINA, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

The Court sua sponte issues this corrected opinion.
An opt-in class of 1,424 store managers, in a collective action certified by the

district court, sued Family Dollar Stores, Inc. (“Family Dollar”) for unpaid

overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-

219. During an eight-day trial, the Plaintiffs used Family Dollar’s payroll records

to establish that 1,424 store managers routinely worked 60 to 70 hours a week and

to quantify the overtime wages owed to each Plaintiff. Family Dollar focused on

its affirmative defense that the store managers were executives within the meaning

of the FLSA and exempt from its overtime pay requirements.

The jury found that the Plaintiff store managers were not exempt executives

and that Family Dollar had willfully denied them overtime pay. The jury awarded

$19,092,003.39 in overtime wages. The court entered a final judgment of

$35,576,059.48 against Family Dollar consisting of $17,788,029.74 in overtime

wages and an equal amount in liquidated damages.

Because of the complex procedural history from 2001 to 2005 that led to the

case being certified as a collective action, the subsequent eight-day trial in 2006,

and Family Dollar’s myriad challenges on appeal, we preface the opinion with a

table of contents:

2
I. PROCEDURAL HISTORY FROM 2001-2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Complaint
B. April 2001 Motion to Facilitate Nationwide Notice
C. October 2001–Second Motion to Facilitate Nationwide Notice
D. July 2002 Notice
E. October 2002–Third Motion to Facilitate Nationwide Notice
F. November 2002 Order and Fact Findings
G. December 2002 Notice to Potential Opt-Ins
H. Discovery Disputes
I. May 2004 Motion to Decertify the Collective Action
J. January 2005 Order and Fact Findings
K. First Jury Trial

II. SECOND JURY TRIAL IN 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Corporate Structure
B. Store Managers
C. Family Dollar Executives
D. District Managers
E. Salary Compared to Hourly Wages
F. Judgment/Verdict

III. DECERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. FLSA’s Similarly Situated Requirement
B. Two-Stage Procedure for Determining Certification
C. District Court’s Denial of Decertification

IV. EXECUTIVE EXEMPTION DEFENSE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. FLSA’s Executive Exemption
B. Primary Duty Is Management
C. Family Dollar’s Motion for Judgment as a Matter of Law
D. Other Circuits’ Cases
E. 163 Individual Plaintiffs Granted Judgment on
Executive Exemption Defense

V. REPRESENTATIVE TESTIMONY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

VI. WILLFULNESS AND LIQUIDATED DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
A. Willful Violation
B. Good Faith and Liquidated Damages

VII. JURY INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

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 I. PROCEDURAL HISTORY FROM 2001-2005

A. Complaint

Family Dollar is a nationwide retailer that operates over 6,000 discount

stores that sell a wide assortment of products, including groceries, clothing,

household items, automotive supplies, general merchandise, and seasonal goods.1

In January 2001, Janice Morgan and Barbara Richardson, two store managers,

filed a Complaint on behalf of themselves “and all other similarly situated

persons,” alleging that Family Dollar willfully violated the FLSA by refusing to

pay its store managers overtime compensation.

The first Complaint asserted that Family Dollar paid store managers a

salary, required them to work 60 to 90 hours a week, and refused to compensate

them for overtime. According to Plaintiffs, store managers are managers only in

name and actually spend the vast majority of their time performing manual labor,

such as stocking shelves, running the cash registers, unloading trucks, and

cleaning the parking lots, floors, and bathrooms. Store managers spend only five

to 10 hours of their time managing anything. Plaintiffs sought unpaid benefits,

1
Family Dollar opens around 500 stores a year. Family Dollar had 2,900 stores in 1999,
4,545 stores in 2003, 5,700 stores in 2005, and has over 6,000 stores now. Here, we recite the
remaining facts in this case based on Family Dollar’s organization during the time frame relevant
to this case, which is 1999 to 2005.

4
overtime compensation, and liquidated damages due to Family Dollar’s willful

FLSA violations.

The Complaint urged the district court to issue notice of the action to all

similarly situated Family Dollar employees nationwide, and to inform them of

their right to opt into the suit as a collective action. Plaintiffs relied on 29 U.S.C.

§ 216(b), which authorizes courts to maintain a case as one collective action so

long as the employee-plaintiffs are similarly situated.

Family Dollar’s Answer raised a number of affirmative defenses. It asserted

that its store managers were exempt executives2 and denied any violations were

willful. Family Dollar also argued that a collective action, under § 216(b), was

impermissible because (1) the store managers were not similarly situated, (2)

Plaintiffs’ claims were not representative of others in the group, and (3) Plaintiffs

could not satisfy § 216(b)’s requirements for maintaining a collective action.

In May 2001, Plaintiffs filed their Third Amended Complaint on behalf of

Morgan and Richardson, and added Cora Cannon and Laurie Trout-Wilson as

Plaintiffs. The Third Amended Complaint raised the same claims for overtime pay

and, again, urged the district court to notify other similarly situated store managers

2
The FLSA provides that its protections “shall not apply with respect to . . . any employee
employed in a bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1).

5
of the action.

B. April 2001 Motion to Facilitate Nationwide Notice

In April 2001, Plaintiffs moved the district court to (1) certify the case as a

collective action, (2) authorize notice “by first class mail to all similarly situated

management employees employed by Family Dollar Stores, Inc. at any time during

the three years prior to the filing of this action to inform them of the nature of the

action and their right to opt-into this lawsuit,” and (3) order Family Dollar to

“produce a computer-readable data file containing the names, addresses, Social

Security number and telephone numbers of such potential opt-ins so that notice

may be implemented.” In May 2001, the court denied the motion for immediate

notice, but indicated the motion was “overruled without prejudice.”

In September 2001, the district court issued a scheduling order pursuant to

Rule 16(b).3 The order indicated that the parties mutually agreed to “an initial

period of discovery limited to identification of claims and their factual basis,” and

that, despite Family Dollar’s opposition, Plaintiffs would request the Court to

facilitate notice on or before February 2002. Discovery was to expire on October

1, 2002.

3
In this opinion, our reference to a “Rule,” unless otherwise stated, is to the Federal Rules
of Civil Procedure.

6
C. October 2001–Second Motion to Facilitate Nationwide Notice

In October 2001, Plaintiffs renewed their motion to facilitate notice. Family

Dollar twice opposed Plaintiffs’ motion and urged the district court to delay ruling

to allow more discovery. At oral argument in April 2002, the court withheld

ruling pending additional discovery by Family Dollar, and ordered Plaintiffs’

counsel to make all named Plaintiffs available for deposition. In April 2002,

before the court ruled on the renewed motion, the parties jointly agreed to send

limited notice of the suit to current and former store managers that worked in the

regions where the named Plaintiffs worked from July 1, 1999 to the present. As a

result, the court denied Plaintiffs’ October 2001 motion as moot.

D. July 2002 Notice

In July 2002, the parties notified 784 potential class members in Region 4

(which contains 15 Family Dollar districts in Alabama, Mississippi, Louisiana,

Georgia, and Tennessee), district 39 (in Georgia), and district 118 (in New York).

The jointly-sent notices required the recipients to mail their consent forms by

October 22, 2002. In August 2002, the court extended the discovery deadline by

120 days.

By October 2002, 142 store managers from different states had filed consent

forms. Plaintiffs’ counsel subsequently sent each of those store managers an 11-

7
page questionnaire with 17 questions and 75 total subparts. The questionnaire

asked about employment dates, weekly work hours, day-to-day duties, amount of

hours spent on manual labor, what independent authority store managers had,

whether district managers made all important managerial decisions, whether

hourly assistant managers performed the same duties, and a host of other questions

relating to Family Dollar store operations.

E. October 2002–Third Motion to Facilitate Nationwide Notice

In October 2002, Plaintiffs renewed their motion to facilitate nationwide

notice. Plaintiffs’ motion estimated that approximately 11,164 current or former

store managers had no notice of the action and that, based on the approximately

20% response rate, a sizeable number of potential class members would opt into

the suit. Plaintiffs’ motion and counsel’s affidavit summarized the responses to

the 11-page questionnaire. Plaintiffs argued that the opt-ins’ responses showed

that the store managers were similarly situated and that there were enough initial

responses to warrant nationwide notice.

Plaintiffs also offered the Rule 30(b)(6) deposition testimony of Bruce

Barkus, the Executive Vice President of Store Operations at Family Dollar.

Barkus admitted that the store manager job description is the “current and only job

description[] for Family Dollar Store Managers,” and acknowledged that Family

8
Dollar made no inquiry into how many hours a week store managers actually work

or whether store managers’ actual day-to-day duties mirror the ones outlined in the

job description. Plaintiffs argued that Barkus’s testimony bolstered the

questionnaire responses that showed store managers spent 90% of their time on

manual tasks.

F. November 2002 Order and Fact Findings

In November 2002, the district court, acting pursuant to § 216(b), granted

Plaintiffs’ motion to facilitate nationwide class notice to “all former and current

Store Managers who work and/or worked for the Defendant over the last three

years.” The court found Family Dollar’s store managers were similarly situated

within the meaning of § 216(b) because they: (1) worked 60 to 80 hours a week;

(2) received a fixed salary and no overtime pay; (3) spent 75 to 90% of their time

on non-managerial tasks such as stocking shelves, running the cash registers,

unloading trucks, and performing janitorial duties; (4) did not consistently

supervise two or more employees; (5) lacked the authority to hire, discipline, or

terminate employees without first obtaining permission from their district

managers; (6) could not select outside vendors without their district managers’

permission; (7) worked no less than 48 hours a week under the threat of pay cuts

or loss of leave time; and (8) arrived at work before the store opened and stayed

9
until after closing.

Although the district court acknowledged that there existed “some

differences between the named-Plaintiffs and the opt-ins in terms of pay scale and

job duties,” it concluded that “these differences do not preclude the facilitation of

nationwide service.” The court stressed that Plaintiffs must only be “similarly

situated”–not “identically situated.” The court considered Family Dollar’s

contention that its stores have “different locations, are of various sizes, and sell

different volumes of merchandise.” But the court found that those differences did

not undermine the factual basis for concluding that Family Dollar’s store managers

were similarly situated. The court emphasized that it had the benefit of making its

decision after twenty months of litigation, considering Plaintiffs’ motion to

facilitate nationwide notice on two previous occasions, and giving Family Dollar

an opportunity to depose the named Plaintiffs. The court found that a sufficient

number of similarly situated employees likely were interested in joining the suit

and that the case could be managed and resolved in a single litigation.

G. December 2002 Notice to Potential Opt-Ins

In December 2002, Plaintiffs’ counsel mailed 12,145 notices nationwide to

current and former Family Dollar store managers employed on or after July 1,

1999. Each had until February 25, 2003 to return the enclosed consent forms.

10
Each mailing included the 11-page questionnaire. By March 2003, nearly 2,500

current and former Family Dollar store managers had joined the litigation.

H. Discovery Disputes

Throughout the litigation, the district court resolved scores of discovery-

related motions. For example, Plaintiffs refused to turn over certain questionnaire

responses based on attorney-client privilege. This triggered various motions to

compel. In another instance, Family Dollar refused to provide Plaintiffs with

information related to the identity of its district managers. Plaintiffs responded

with their own motions to compel. Meanwhile, a fight over depositions was

brewing. In March 2003, Family Dollar notified Plaintiffs of its intent to depose,

either in person or by written questions, all opt-in Plaintiffs.

The court extended discovery until August 29, 2003. And in June 2003, in a

comprehensive order, the court (1) required Plaintiffs’ counsel to produce the

questionnaire responses used to support Plaintiffs’ motion to facilitate nationwide

notice; (2) ordered Family Dollar to produce the names, addresses, and telephone

numbers of all former Family Dollar district managers since June 1999; (3)

prohibited Plaintiffs’ counsel from engaging in ex parte communication with

former Family Dollar district managers; and (4) clarified that “this Court shall . . .

treat each opt-in Plaintiff as a separate party for purposes of enforcement of the

11
Scheduling Order.”

Discovery issues continued to surface. The court again extended deadlines

for discovery to December 12, 2003, and for dispositive motions to January 12,

2004.

In October 2003, Family Dollar informed Plaintiffs that it intended to

depose all remaining opt-in Plaintiffs, using written questions, pursuant to Rule

31. In November 2003, Family Dollar’s counsel sent a letter stating it planned to

take 2,100 depositions in seven days, using 338 written questions per deponent,

from December 6 to 12, 2003, in Birmingham.

Plaintiffs moved for protective orders to limit the number of depositions to

two a day until the end of discovery and to prevent Family Dollar from deposing

the nearly 2,100 opt-in Plaintiffs. Plaintiffs’ motion noted that discovery had been

ongoing for two and a half years, and that prior to October 2003, Family Dollar

failed to depose any of the opt-in Plaintiffs. Plaintiffs objected to Family Dollar’s

attempt to depose 2,100 opt-in Plaintiffs during the last 29 days of discovery as

burdensome, unreasonable, and expensive. In November 2003, Family Dollar

moved for a protective order, prohibiting disclosure of the written deposition

questions to the opt-in Plaintiffs.

In January 2004, the district court issued a discovery management order

12
resolving many issues. The court limited Family Dollar to “not more than” 250

depositions of the opt-in Plaintiffs, “including those who [had] already been

deposed.” The court did not restrict Family Dollar to written questions, but

limited depositions to five per day (each three hours long). The order authorized

Plaintiffs to select 250 opt-ins for Family Dollar to depose in-person. The court

pushed the discovery deadline back to April 12, 2004, with dispositive motions

due May 12, 2004. It denied both parties’ motions for protective orders as moot.

In late January 2004, Family Dollar moved to clarify or alter the discovery

management order. In early February 2004, the district court denied Family

Dollar’s request to depose the rest of the opt-in Plaintiffs under Rule 31 (written

deposition questions), but granted Family Dollar leave to use Rule 33

(interrogatories) to obtain discovery from the remaining opt-in Plaintiffs. In

March 2004, the court issued an order clarifying that Family Dollar was entitled to

serve 25 interrogatories on every opt-in Plaintiff.

By mid-February 2004, 152 opt-in Plaintiffs (of the 250) had not been

deposed in-person. The court gave Plaintiffs’ counsel seven days to provide

Family Dollar with a list of the remaining 152 opt-in Plaintiffs and the dates that

each would be available for deposition in Birmingham. To ensure Family Dollar

had an opportunity to depose the remaining 152 opt-in Plaintiffs in Birmingham,

13
the district court, in late February 2004, also ordered Plaintiffs’ counsel to provide

Family Dollar with three days notice of any change in scheduled depositions, and

threatened to dismiss opt-in Plaintiffs who failed to attend. For the next several

months, the court dismissed with prejudice various opt-in Plaintiffs for their

failure to appear at depositions in Birmingham. By the end of discovery, Family

Dollar deposed, in person, 250 opt-in Plaintiffs and the named Plaintiffs.4

In addition to the 250 depositions of the opt-in Plaintiffs, the parties

deposed Family Dollar’s executives, district managers, various experts, and other

witnesses. Family Dollar produced voluminous payroll records, store manuals,

emails, and other communications. Plaintiffs produced the individual responses to

the questionnaire. The record was fully developed before the next critical step in

this case.

I. May 2004 Motion to Decertify the Collective Action

In May 2004, Family Dollar moved to decertify the collective action under §

216(b). Relying on affidavits and a wealth of information revealed during

discovery, the parties briefed whether the case should proceed as 1,424 individual

4
Although the court permitted Family Dollar to send interrogatories to the remaining opt-
in Plaintiffs, it does not appear Family Dollar did so (at least from the record before us).

14
actions5 or as a § 216(b) collective action. Family Dollar argued (1) the opt-in

Plaintiffs were not similarly situated under the FLSA, because their day-to-day job

duties were too different; (2) the executive exemption defense is inherently

individualized; and (3) discrepancies in the store managers’ duties made a

collective trial impossible and unfair.

In response, Plaintiffs pointed out that discovery established that all store

managers were similarly situated because they (1) have the same job description,

(2) spend 75 to 90% of their time on the same non-management duties, and (3)

spend little time on the management duties in their job description. In addition to

Barkus’s testimony, Plaintiffs emphasized the deposition testimony of two other

Family Dollar executives, Bill Broome and Dennis Heskett, indicating that Family

Dollar applied the overtime exemption across the board without any consideration

of store-by-store variables, and that store size and location did not affect Family

Dollar’s decision to exempt all store managers from overtime pay requirements.6

5
The total number of opt-ins began at around 2,500 but was reduced over time to 2,100
and ultimately decreased to 1,424 based on numerous events, such as failure to appear for
depositions, bankruptcy filings, and other district court rulings. We use 1,424 because that is the
number of Plaintiffs left when the case was tried.
6
Broome testified:
Q. Now, Family Dollar has not done a study about the duties of store managers in
relation to whether they should be exempt or non-exempt for overtime purposes,
has it?
A. Not that – I don’t know, not that I’m aware of.
Q. You’re the official company spokesman, as you told us; correct? Now, Family

15
J. January 2005 Order and Fact Findings

In a January 2005 order, the district court denied Family Dollar’s motion to

decertify, determined that none of the factual findings in its November 2002 order

had been called into question, and made additional fact-findings. The court’s

order also expressly incorporated those 2002 findings by reference.

In addition, the court found that the “evidence confirm[ed] that substantial

similarities exist in the job duties of the named and opt-in Plaintiffs.” The court

Dollar has simply said all the store managers are exempt, every one of them;
right?
A. Yes, Sir.
...
Q. You said every store’s manager is considered exempt. And when you said
“every,” you meant regardless of store size, number of employees, whether it’s
rural or urban, no matter what its profits, no matter what anything; you just said
they’re all exempt, didn’t you?
A. All of our store managers are salaried, yes, sir, in every store.
Q. Doesn’t matter how many employees are in the store, they’re all just exempt?
A. All the stores of Family Dollar, yes, sir.
Heskett testified:
Q Does a store’s location, whether it’s rural or urban affect whether a store
manager is exempt from overtime?
A Not than I’m aware of.
Q Does the store’s size affect whether a store manager is exempt from overtime?
A Not than I’m aware of.
...
Q Does staff size, the number of employees supervised, does that affect whether
the store manager gets paid overtime?
A Not than I’m aware of.
Q Do you know anything about stores that varies from store to store that affects
whether the store managers get paid overtime?
A None that I can think of.
Q In fact the company has made a determination that all store managers for all
stores will not get paid overtime at overtime rates, hasn’t it?
A Our managers are salaried and have been as far as I know for a long time.

16
found that 90% of the named and opt-in Plaintiffs (1) interview and train

employees, (2) direct work of employees, and (3) maintain production and sales

records.

The court also found that the named and opt-in Plaintiffs had similar

restrictions on the scope of their responsibilities. Although classified as store

managers, they lacked independent authority to hire, promote, discipline, or

terminate assistant managers; award employees pay raises; or change weekly

schedules of hourly employees. And 90% lacked the power to close the store in an

emergency without the district manager’s permission. The court concluded that

none of the named and opt-in Plaintiffs were responsible for the “total operation of

their stores,” and that, in reality, district managers performed the relevant

managerial duties. The court found:

[m]uch of the management discretion which would ordinarily be
exercised by store managers is exercised by the district management
pursuant to corporate policies and practices set at headquarters. The
store managers are very closely supervised by the district managers. In
terms of managerial duties, the district manager is more directly
responsible for the operation of a Family Dollar store than the store
manager.

The court also determined that Plaintiffs similarly spent their time between

managerial and non-managerial duties. It found that most (90%) of the named and

opt-in Plaintiffs (1) “spend only a small fraction of their time performing

17
managerial duties”; (2) “spend the vast majority of their time on essentially non-

managerial duties such as unloading trucks, stocking shelves, working as cashiers,

and performing janitorial duties”; and (3) shared some of their managerial duties

with nonexempt, hourly employees (ordering merchandise, controlling store keys,

opening and closing the store, depositing money in banks, and approving checks,

refunds, and returns).

Viewing the evidence “as a whole,” the court found that (1) the primary

duties of Plaintiffs were not managerial; (2) the time spent performing non-

managerial duties did not significantly differ from store to store, district to district,

or region to region; and (3) the relative importance of the non-managerial duties

(as compared to the limited number of managerial duties) did not vary

significantly depending on the store or district. Further, “the basic pay rates of the

named and opt-in Plaintiffs are also similar,” in that Family Dollar paid “all of its

store managers a base salary regardless of the weekly hours they work.” The court

determined that Family Dollar’s defenses were not so individually tailored to each

Plaintiff that a collective action would be unmanageable. Because substantial

similarities existed in the Plaintiffs’ job duties, and the same policies and

procedures applied to each store, the court concluded that the case could be fairly

18
tried as a collective action.7

K. First Jury Trial

In February 2005, the court entered a pretrial order summarizing each

party’s trial position. Family Dollar did not contest that it engaged in interstate

commerce or that it failed to pay its store managers time and a half for any work

over 40 hours a week. Its success at trial would turn on whether Family Dollar

proved its store managers were exempt executives.

Before the first jury trial, the court allowed the Plaintiffs to represent the

opt-in members as a whole. Family Dollar argued that Plaintiffs were not

similarly situated, repeatedly sought decertification, and alternatively argued the

Plaintiffs should be divided into nine subgroups. The court denied Family

Dollar’s requests and allowed the case to be tried as a collective action with the

Plaintiffs representing (and thus binding for good or bad) the opt-in members as a

whole. In the first trial, the jury deadlocked. Therefore, the issues on appeal arise

out of the second trial.

II. SECOND JURY TRIAL IN 2006

7
In May 2004, the court denied Family Dollar’s motions for summary judgment, which
were based on the statute of limitations, the executive exemption defense, and judicial estoppel.
Family Dollar filed a number of motions for reconsideration, and in July 2004, the court granted
Family Dollar summary judgment on the two-year statute of limitations as to 54 Plaintiffs and on
the three-year statute of limitations as to eight Plaintiffs. This appeal does not involve those
rulings.

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 The second jury trial lasted eight days. This time the jury reached a verdict,

expressly finding the store managers were not exempt. The parties called 39

witnesses–store managers, district managers, corporate executives, payroll

officials, and expert witnesses. In total, the testifying store managers worked at 50

different Family Dollar stores. The testifying district mangers ran the operations

of 134 different stores. Two testifying Family Dollar executives oversaw 1,400

stores, while a third testifying executive was in charge of all stores.

The parties presented hundreds of Family Dollar’s records detailing its

policies and procedures. These records included Family Dollar’s Store Policy

Manual, subsequent manual revisions, four volumes of the Professional

Development Training Reference Book, the Personnel Training Manual, various

Frequently Asked Question documents, “Weekly Work Schedules,” and emails by

district managers to store managers. The parties also introduced a large volume of

payroll records showing (1) the number of hours worked by each Plaintiff store

manager each week, (2) each store manager’s salary and rate of pay, and (3) the

number of hours every employee worked each week. Both parties submitted

multiple exhibits summarizing payroll data in easy-to-digest charts.

Given the jury’s verdict and our standard of review, we outline the trial

20
evidence in the light most favorable to the Plaintiffs.8

A. Corporate Structure

Family Dollar is a publicly held, nationwide retailer that operates over 6,000

discount stores in 40 states and the District of Columbia. It has annual sales of

around $5 billion and annual net profits ranging from $200 to 263 million from

1999 to 2005. Its individual stores have average annual sales of $1 million, and

average net profits of 5 to 7%, or $50,000 to $70,000.

Family Dollar structures store operations into five divisions (each headed by

a vice-president), 22 regions (each headed by a regional vice-president), and 380

districts (each overseen by a district manager). Each district contains multiple

stores. Each district manager supervises the operations of 10 to 30 stores. Some

8
Family Dollar repeatedly moved for judgment as a matter of law, including at the close
of the evidence and after the jury’s verdict. We review a district court’s denial of a motion for
judgment as a matter of law de novo. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1275 (11th Cir. 2008); Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299-
1300 (11th Cir. 2007). “The question before the district court regarding a motion for judgment as
a matter of law remains whether the evidence is ‘legally sufficient to find for the party on that
issue,’ Fed.R.Civ.P. 50(a)(1), regardless of whether the district court’s analysis is undertaken
before or after submitting the case to the jury.” Chaney v. City of Orlando, 483 F.3d 1221, 1227
(11th Cir. 2007). “‘In considering the sufficiency of the evidence that supports the jury’s verdict,
we review the evidence in the light most favorable to, and with all reasonable inferences in favor
of, the nonmoving party.’ If reasonable and fair-minded persons in the exercise of impartial
judgment might reach different conclusions based on the evidence presented, the motion should
be denied.” Millennium Partners, L.P., 494 F.3d at 1299-1300 (quoting Montgomery v. Noga,
168 F.3d 1282, 1289 (11th Cir. 1999)). “We will reverse only if the facts and inferences point
overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary
verdict.” Goldsmith, 513 F.3d at 1275 (internal quotation marks omitted).

21
districts are small with multiple stores in an urban area. Other districts are larger

with small stores in small towns. The district manager’s office is housed within

one store in the district.

Family Dollar’s corporate office issues instruction manuals with operating

policies that apply uniformly to all stores nationwide. No matter the size of the

store or the district, every detail of how the store is run is fixed and mandated

through Family Dollar’s comprehensive manuals.

B. Store Managers

Family Dollar has the same job description for all store managers and lists

their “Essential Job Functions” as:

1. Supervise all store personnel, including assigning tasks, ensuring
compliance with merchandising and operational policies, and locking
and unlocking store.
2. Prepare, complete and transmit store reports as required.
3. Count money/checks, prepare bank deposits and travel to bank.
4. Count petty cash, get change from bank, unlock petty cash drawer and
give change to cashiers as needed in registers.
5. Post net sales in Beat Yesterday Book.
6. Train Cashiers and Stock Clerks through verbal instructions and non-
verbal demonstration.
7. Count stock, calculate amount to order, use MSI machine to order and
transmit, calculate additional goods needed for ad bulletins and endcap
programs.
8. Read, plan and stock schematics for proper merchandising.
9. Practice cash control policies; including check approvals, refund and
exchange approvals, layaway approvals (when applicable).
10. Work as Cashier when needed and be able to perform all Cashier

22
tasks, including but not limited to:
• Ring up sales on cash register, receive money/check and
count correct change to customer; hold and use register key
while on shift.
• Scan merchandise labels and place merchandise in bags.
• Count money in cash register when coming on and
leaving shift; write and sign the Balance & Declare Slip at
end of shift.
• Clean cash register area using cleaning solutions and
paper towels; sweep mat, dressing room and entry areas as
necessary.
• Verbally greet each customer as they enter the store;
receive bags and staple labels to each bag customer brings
into store.
• Straighten and restock gum, candy and other areas on
register.
• Attach labels and software to merchandise using Meto
gun; place price stickers on hardliners merchandise; read
pre-printed labels and use Swiftach machine to attach
softline merchandise.
• Place merchandise on correct clothes hangers, button/zip
and hang on rack as needed.
• Cut register tapes and tape to appropriate packages.
• Unpack shipping packages (totes) and prepare for shelf
placement.
• Monitor dressing room, including opening door, counting
merchandise and checking after customer leaves.
• Watch suspected shoplifters; ring front bell to notify
other employees of situation needing help.
11. Work as Stock Clerk when needed and be able to perform all Stock
Clerk tasks including but not limited to:
• Unload incoming freight off trucks; count incoming boxes
and verify correct receipt and log in freight log.
• Open boxes, check for damaged goods and remove
merchandise.
• Stock shelves with merchandise, including bulky and heavy
goods.

23
 • Pack merchandise, complete transfer labels and seal cartons
for outgoing shipment.
• Organize and maintain layaway bins.
• Maintain organization of sign and pricing area.
• Store and remove seasonal repacks as necessary.
• Perform simple maintenance such as changing light bulbs,
moving shelving and panels.

The overwhelming evidence showed that Plaintiff store managers exercise little

discretion and spend 80 to 90% of their time performing manual labor tasks, such

as stocking shelves, running the cash registers, unloading trucks, and cleaning the

parking lots, floors, and bathrooms. Even as to the assigned management tasks,

such as paperwork, bank deposits, and petty cash, the store manual strictly

prescribes them. And district managers closely scrutinize store managers to

ensure compliance with the manual and corporate directives.

Family Dollar forbids outside janitorial help, and store managers lack

authority to hire outside vendors. Store managers, just as hourly employees, are

expected to clean the store. For the purposes of “End of Day Recovery,” the

manual requires that “[t]wo hours before closing, all employees are to stop their

current projects and begin a systematic cleaning and straightening up of the store.

(The only exception would be the Cashier who is ringing up sales.) If the store

has been shopped heavily, more time may be required to satisfactorily recover.”

The manual specifies the trash must be emptied (after checking for hot cigarette

24
butts), the floors must be swept every day, and the floors must be mopped with

clear water at least once a week. Rest rooms must be cleaned and mopped daily,

stocked with toilet tissue, paper towels, and a trash container that is to be emptied

daily. “Under no circumstances should there be merchandise, equipment or

fixtures in the rest rooms.”

Store managers routinely perform janitorial duties. The manual even

prescribes how janitorial tasks are to be performed:

Each morning the sidewalk is to be swept, the parking lot is to be free
of debris, the rides wiped clean and checked for safety reasons, the drink
machine wiped clean, the trash cans emptied, the window ledges cleaned
of cobwebs and dust, and the windows washed as necessary.

Weeds must be removed. Do not allow weeds to grow around the
building in the front or back. Pay special attention to the sidewalk area
in front of the store. Remove any weeds that may be growing here.

The back of the building (the entire perimeter, if the building is free
standing) is to be maintained just as the front. No shopping carts,
fixtures or blue totes are to be stored outside. If there are problems with
people using the store’s dumpster or leaving large items behind the
store, contact the District Manager for instructions.
...
Sweep mats as often as necessary during the day to maintain a clean and
neat appearance. If the mat has spots, they are to be removed with a spot
remover. Remove chewing gum by hardening the gum with ice, then
pulling the gum off.

If the entrance mats get wet, hang them for a few minutes. The water
will drain off the mat.

25
 With respect to indoor janitorial duties:

The windows are to be kept free of cobwebs and dusted daily. The
window ledges are also to be maintained daily as needed, free of dust
and debris.

Store managers lack discretion over the store’s merchandise selection,

prices, sales promotions, and layouts–all are set by the home office and district

managers. For example, each store is provided a schematic layout and diagram of

the store which shows (1) where each shelf must be, (2) what product goes on each

shelf, (3) how all merchandise is to be displayed, (4) how all signs, merchandising,

and display information is to be used, (5) how each “end cap” (the end of an aisle

or gondola) should be displayed, and (6) what promotional product goes on the

end cap. Every month, corporate headquarters mails each store a promotional

programs booklet that contains the monthly planning calendar and a number of

merchandise programs. The manual admonishes that “any deviation from the

company program must have the District Manager’s approval.”9

The tiniest of details are governed by the manuals. For example, the

manual’s “Clip Boards in the Office” page details how a store must structure its

9
As provided in the manual, Family Dollar’s computer system replenishes “basic
merchandise” items. A register informs the system of every sales transaction at the store. Based
on prior selling history and the current inventory level, the system determines the amount of
goods needed to maintain the “maximum on hand allowance.” In addition, each store orders
merchandise on a preassigned order day, which is delivered on a preassigned “truck day.”

26
clip boards.10 Even the four drawer cabinets, located in every store, are organized

identically.11 The manual also has a subsection on “Break Area and Coffee Pots.”

It states that “Appliances such as coffee pots, microwave ovens, refrigerators, etc.,

must be approved by the District Manager. Whoever makes the coffee is

responsible for unplugging the coffee pot when not in use.” The manual instructs:

“Do not use the on/off switch as this can be left on by mistake and create a fire

hazard. Make periodic checks throughout the day and before closing to assure that

it has been unplugged.”

Store managers must follow strict rules regarding store keys, bank deposits,

petty cash, and store operating hours. For example, the manual requires there be

$300 in petty cash, divided into $200 in the petty cash-box for making register

change, and $50 in beginning funds for each of the two registers. In some cases,

the petty cash amount may be increased due to the volume of business with the

district manager’s and regional vice-president’s approval and notification to the

10
For example, the top row must include, from left to right, Monthly Promotional
Programs, Ads and Ad Planners, Pending Schematic and MSI Label Changes, Current Store
Order and Stop Shipments, DM Notes and Latest DM Audit, Messages and EDLP Notes, and a
Housekeeping Checklist.
11
Drawer One contains the petty cash box, bank deposit bags, register keys, extra keys,
stamps, and an extra till bag. Drawer Two houses items such as unauthorized price change
reports and area change reports. Drawer Three holds the open direct summary file, packing slips,
credit memos, direct shipment notifications, and processed billing summaries. Drawer Four has
messages, payroll, personnel, drug screening, resignation verification, employee evaluations,
warning forms, blank applications, completed applications, and a variety of other forms.

27
Cash and Sales Department. The manual indicates that “[t]he amount of the

store’s Cash Accumulation is to be set by the District Manager . . . . [and] should

be posted in the petty cash box using the ‘Cash Accumulation Card.’” Store

managers have the same paperwork to do and time frame in which to do it.

Further, each store has a preassigned “truck day” when the company truck

delivers merchandise to the store. Because of the volume of unloading and

stocking, the store manager always works “truck day.” The store manager helps

unload 800 to 1,500 cartons from the truck to the storeroom and stock the shelves.

The evidence also showed that store managers are assigned a fixed payroll

budget, with total labor hours to come from that budget each week, and are

required to use only hourly employees. As detailed later, store managers have

scant discretion to act independently of their district managers.

C. Family Dollar Executives

Plaintiffs called two Family Dollar executives who testified about store

managers’ roles in the Family Dollar corporate hierarchy. Bruce Barkus started

with Family Dollar in 1999, oversaw all stores, and reported to the President. He

testified that Family Dollar classified store managers as executives, across the

board, without ever determining how store managers spent their time:

Q. Okay. And Family Dollar never did any study of the hours that the

28
 store managers were spending in the stores working, have they?
A. No.
Q. And Family Dollar never studied the tasks that the store managers
were doing, working in the stores?
A. No.
Q. Family Dollar’s never studied or tried to determine how much time
they spent on each task in the stores?
A. There was some work done on the door to floor, you know, how
much time was receiving trucks.
Q. But that was not for purposes of looking at their managerial duties?
A. No, sir.
Q. Family Dollar’s never studied or looked into the managerial duties or
the amount of time spent on managerial duties by store managers, have
they?
A. No, sir.
Q. And Family Dollar’s never done a study or attempted to determine
whether store managers are, in fact, bona fide executives, exempt from
overtime, have they?
A. No.
Q. In fact, Family Dollar doesn’t even have a policy addressing Fair
Labor Standards Act overtime requirements, does it?
A. Not that I am aware of.

Barkus testified that in a study of how much time it took to unload trucks and get

merchandise to the floor, that the “biggest chunk of the store manager’s time was

being spent on manual labor, unloading the trucks, getting it to the floor, and onto

the shelves.”

Barkus also testified that district managers ensure that store managers do

not exceed the fixed payroll budgets assigned by corporate management. A store

29
manager that goes over budget, by even a penny, could be fired.12 Because store

managers are under orders that overtime labor is not allowed, they are required to

do any and all work, even if the payroll budget does not allocate enough hourly

employees to get the job done.13 Cuts to a store’s payroll budget necessarily

reduce a store’s workforce and ensure that the salaried store manager (and not the

hourly employees) makes up the difference by working more hours.14

12
“Q. But they have to get district manager approval if they go outside the budget, and are
subject to discipline if they don’t? A. They could be subject to discipline, but there’s many times
that they don’t get approval to go outside the budget. Q. But there’s also been times, as we see in
these emails, where they’re threatened with their job if they go one penny over their budget that’s
been given to them by their district manager; correct? A. I’m sure you have a document that
shows that, yes.”
13
“Q. And the budget limits how much payroll they have; in fact, it’s just a payroll budget,
isn’t it? A. The budget’s based on sales and store hours and then other factors. Q. Those are the
elements that go into the budget. But the budget itself is just covering payroll, nothing
but payroll; correct? A. It’s covering hours, associate hours. Q. It tells how many associate hours
that managers are allowed to have? A. Yes. Q. If that’s not enough, he has to do it himself,
work whatever hours it takes; right? A. Yeah. The job has to get done.”
14
Plaintiffs’ counsel confronted Barkus with his deposition testimony:
Q. But you’ve known -- we took your deposition in 2002 -- you told us then that
that’s the way the system works; the budget staffs the store at just a certain level, and
the store manager has to make up all the other hours? A. Can you point that out to
me? Q. Yes. Turn to Page 322 of your deposition. And, again, it’s shifted a little bit.
It’s 324, line 11. “Question: In many instances, the store managers will assume the
duties of those associates so that their budget stays in line, or they come in under
budget; correct? Answer: Yes.” A. That’s correct.
...
Q. And, in fact, the people under you, your district managers, they have sent emails
out saying to the store managers, “I’m cutting your budget.” It means, I’m taking
away the hours of your subordinates; and you work the hours, 60, 70, 80, hours,
whatever, haven’t they? A. I haven’t seen it, but I’m sure you’re referring to
something. Q. Yes. Exhibits 18 and 19, 25 through 29, 32, 33, 45, 154, 168; you go
through the book, you see it over and over. I’m taking your budgets away. You work

30
 Almost all of the store manager’s job is standardized and controlled by

superiors. Barkus confirmed that Family Dollar makes virtually no distinction

between a store manager’s job duties and an assistant store manager’s job duties.15

Plaintiffs also offered the testimony of Charles William Broome, a Senior

Vice-President of Store Operations, who supervised 1,400 Family Dollar stores.

Like Barkus, Broome confirmed that Family Dollar never studied whether store

managers were exempt executives16 and its exemption policy did not turn on any

individual factors. It was a company wide decision that applied regardless of store

size, location, sales volume, or any other individual factors:

Q. You’re the official company spokesman, as you told us; correct?
Now, Family Dollar has simply said all the store managers are exempt,
every one of them; right?
A. Yes, sir.
Q. They hadn’t looked at store size?
A. I -- I don’t know how to answer that. Store managers have been
salaried for the 29 years that I’ve been here; they were when I came. I
don’t know how that was arrived at.
Q. Okay. Let me ask you this. You said every store’s manager is

the hours.
15
“Q. Do you recall the ‘Essential Job Functions of the Assistant Store Manager’? A.
Yes, I do. . . . Q. And the assistant store manager job description, called Essential Job Functions,
is Exhibit 7. It shows that the assistant store manager, his regularly assigned essential duties are
the same ones as for the store manager; virtually word for word; correct? A. Yes.” Other
evidence showed that hourly assistant managers performed the same tasks as the store manager.
16
“Q. Now, Family Dollar has not done a study about the duties of store managers in
relation to whether they should be exempt or non-exempt for overtime purposes, has it? A. Not
that -- I don’t know, not that I’m aware of.”

31
 considered exempt. And when you said “every”, you meant regardless
of store size, number of employees, whether it’s rural or urban, no
matter what its risk class, no matter what its sales volumes, no matter
what its profits, no matter what anything; you just said they’re all
exempt, didn’t you?
A. All of our managers are salaried, yes, sir, in every store.
Q. Doesn’t matter how many employees are in the store, they’re just all
exempt?
A. All the stores of Family Dollar, yes, sir.

Despite his 29-year tenure with Family Dollar, Broome had no idea where the

exemption decision originated:

Q. Now, my question is, did you make that decision?
A. No, sir.
Q. Did your boss, Mr. Barkus, make that decision?
A. To my knowledge, it’s been in place -- it was in place when I came
here 29 years ago. So --
Q. Okay. So, do you know anybody that will own up to that decision;
say, “that was my decision”?
A. I do not.
Q. Mr. Levine, has he ever told you that’s his decision?
A. No, sir.
Q. Can you give us any clue? And the reason I’m asking you this, I
asked you this in the deposition and we’ve been asking a lot of people
in depositions: Who made this decision, do you know?
A. I do not.

Broome acknowledged that hourly assistant managers fill in for store managers,

open and close the store, can perform all managerial tasks of the store manager,

and are eligible for overtime pay.

Broome confirmed that a store’s payroll budget, the budgetary outlay that

32
dictates how many employees can work in the store, is determined by corporate

headquarters in conjunction with the district manager. Store managers are

prohibited from exceeding the payroll budget and can be fired if they do.17

Family Dollar’s corporate office generates a “staff scheduler” that uses the

amount of money that the store may spend on labor and converts it into a

document that delineates how many hours a week each employee should work and

the total weekly labor hours for the store. According to the staff scheduler, each

store manager is supposed to work 52 hours a week. Broome testified that,

generally, store managers are expected to work between 48 to 52 hours, but that

“as manager of the store, you’re required to manage the store and do whatever it

takes. I don’t know that there is a specific number that’s mandated.”18

17
“Q. If a store manager, though, goes over budget, he spends more than what he’s been
given by his district manager, he can be disciplined; right? A. Could be, yes. . . . Q. But you
remember when I showed you store managers who were -- they were threatened to be fired for
going over budget; you remember that, don’t you? A. There have been e-mails written stating
that, yes, sir. Q. And those e-mails came from district managers to store managers telling them
they’d be disciplined or fired if they spent one dime, one penny, over the budget that that district
manager had given them; right? A. I don’t remember the specific words, but, yes. They said that
you could be disciplined up to and including termination for doing something.”
18
“Q. And it always shows 52 hours for the store manager; correct? A. To the best of my
knowledge, yes. Q. Because the system is built -- that is, the staff scheduler system and the store
payroll budget is built on the 52-hour week assumption for the last several years, for store
managers; right? A. The staff scheduler is built with 52 hours as a base for the manager, the
manager’s salary. So the number of hours they could work 40 and still receive their salary, or
they could work 60 and still receive their salary. But it’s built using that as part of the
coverage.”

33
 Broome’s testimony was consistent with Family Dollar’s “Staff Schedule

Frequently Asked Questions” (“FAQ”). As to whether store managers can

increase or reduce associate hours, the FAQ says they may “as long as total hours

& coverage for each day & week are not increased or decreased.” Similarly, as to

whether the store manager can change the schedule to work “a 5½-day workweek

instead of a 5-day workweek,” the FAQ says that “[t]his change can only be made

by the District Manager and should only be made as long as total hours &

coverage for each day are not increased or decreased.” In other words, any

flexibility store managers have in scheduling is substantially constrained by the

fixed payroll budget which dictates the total labor hours.

Although store managers can schedule what employees work what hours on

the “weekly staff schedule” so long as the store does not exceed the payroll

budget,19 certain corporate directives further constrain store managers’ discretion,

such as the prohibition on moving employee coverage from slower days (like

weekdays that did not involve unloading truck shipments) to busier days.20

19
Some district managers showed on the staff scheduler the days and hours that assistant
managers and sales associates worked. But others allowed their store managers to plug in who
worked when so long as they did not exceed the total allotted labor hours for the week.
20
As Broome testified: “Q. Can I move coverage from slower days, (i.e., non-truck
weekdays) to Fridays, Saturdays or Sundays when we are busy? A. No. Store’s schedules are
designed to give coverage that are based on store volumes, store hours. Q. So this is telling store
managers they can’t schedule people the way they want to schedule them; correct? A. It’s

34
 Finally, the FAQ evinces Family Dollar’s strict rules against scheduling

employee overtime. The FAQ indicates that store managers cannot change the

schedule of assistant managers to reflect a 48 to 52 hour workweek while they are

training, and that “[i]f the change is made [by the district manager] the total hours

& coverage for each day should not be increased or decreased and the store payroll

budget must be met. It is very important to control the use of overtime dollars.”

D. District Managers

Family Dollar’s 380 district managers implement and enforce these policies

and procedures. Their vigorous oversight ensures that store managers comply

with the operations manual’s precise dictates. The operations manual states that

the district managers–not the store managers–head the “store team.”21

District managers uniformly run their stores through strict payroll budgets,

to-do lists, daily emails with instructions to store managers, telephone calls, store

visits, electronic execution reports, and electronic data flowing from the store’s

cash register on a real-time basis.22

basically telling them they should not move coverage from slow days to the weekend.”
21
A portion of Family Dollar’s Professional Development Training Reference Book
describes the “Family Dollar Store Team” in order of seniority as District Manager, Store
Manager, Assistant Manager, and Associates.
22
District managers visit each store at least once a month and some visit twice a month or
more. The job description for a district manager states: “Visit stores, continuously developing

35
 Plaintiffs’ witnesses explained how Family Dollar’s corporate office sets a

fixed payroll budget for each store and how that budget results in salaried store

managers working long hours each week. The district manager transmits a set

payroll budget for the upcoming 13-week period to the store managers. The

budget shows the store manager’s salary and a preset number of labor hours a

week (to be worked by hourly employees) that must be paid for from that budget.

Other than the salaried store manager, Family Dollar staffs every store with only

hourly employees (either the assistant manager or sales associates).23 District

managers then closely monitor each store’s weekly payroll to ensure store

managers do not allow overtime work and stay strictly within the fixed payroll

budget and the total labor hours allotted. Plaintiffs introduced numerous emails

confirming this fact.24

For example, at a low volume, small store, the district manager sets the

plans to improve performance. One store per day is to be worked Monday through Thursday,
with multiple stores on Friday and Saturday if desired unless otherwise directed.”
23
Assistant managers work full-time, while sales associates work either part- or full-time.
24
According to the manual, district managers monitor the payroll budget by requiring
every store manager to key payroll hours into the Payroll Daily Form. Store managers must enter
payroll hours at the end of the day for employees that have clocked out for the day or “first thing
in the morning for the employees who worked the previous day.” Every Wednesday, store
managers are required to print out and transmit the Payroll Daily Form. At the end of each week,
store managers must record weekly net sales (i.e., the figure from the “Beat Yesterday Book”)
and actual payroll dollars spent, and send this information to their district managers.

36
store’s payroll budget at around $1,400 per week. The average store manager’s

salary of $600 per week comes out of this budget. The remaining $800 pays the

hourly employees. The payroll budget is often only enough to pay one full-time

hourly assistant manager and two or three hourly sales associates. Because the

store is open seven days a week and store managers are not permitted to

unilaterally schedule hourly staff for overtime, store managers routinely worked

60 to 70 hours a week to have enough floor coverage during the set store hours25

and to complete the required manual labor.

For higher volume, larger size stores, the corporate office sets a larger

payroll budget, which usually covers more hourly employees (seven to ten). But

larger stores have more merchandise to stock, more cartons to unload on truck day,

a need for more cashiers, and more demand for cleaning. Because the payroll

budget is fixed and strictly monitored, store managers at larger stores, just like

those at smaller stores, routinely work 60 to 70 hours per week and spend 80 to

25
The manual requires all Family Dollar stores to be open seven days a week for the entire
year, except for Christmas Day. Corporate headquarters sets the hours–nine a.m. to seven or
eight p.m. on Monday through Saturday, and noon to six p.m. on Sunday. Each store is open 72
hours a week. Only headquarters or a district manager can change a store’s hours.
The manual states that “there are only two sets of keys to a Family Dollar Store.” One set
is for the store manager, who “should maintain possession of his or her keys at all times,” and the
other set is held by the assistant manager or the floor supervisor. The manual allows for a third
key to be given to another employee for emergency purposes, but that employee must be
recommended by the store manager and approved by the district manager.

37
90% of their time on manual labor.

District managers closely supervise the hiring and firing process. They

interview and hire store managers and interview and approve the hiring of

assistant managers.26 Store managers initially interview assistant manager

candidates and make recommendations to the district manager. The manual states

that a “job offer is not to be made until . . . Management has received authorization

to hire.”

Although store managers interview and recommend hourly associate

candidates, they need district manager approval to hire them. The district

manager–not the store manager–also has the authority to terminate employees.27

26
Broome testified about hiring: “Q. In fact, if a store manager were to attempt to hire his
own assistant without the district manager interviewing and selecting the person, they could be
disciplined and fired, couldn’t they? A. If they had not been given that authority by the district
manager, they could be. Yes, sir. Q. I’m talking about the company policy is, that if a store
manager tries to hire his own assistant instead of having the district manager do the interview and
doing the hiring, they are subject to discipline, aren’t they? A. They could be, yes, sir.”
27
Barkus testified:
Q. And you don’t know of any training or instructions that have been given to store
managers which tells them that they have the power to discharge a store employee,
do you?
A. I don’t know of any, no.
Q. And you don’t know of any instructions or anything the store managers have been
told that says that they can suspend an employee in their store on their own either, do
you?
A. I don’t know of any, no.
Q. And, in fact, you issued an email in February 2003, which told the store managers
that if they tried to hire their own assistants on their own, they would be subject to
being fired, terminated, didn’t you?
A. Yes, I did.

38
The manual notes that “[p]rior to termination, Store Management should discuss

the situation and its recommendation with the District Manager, or if unavailable,

with the Regional Vice President.”28

Most store managers follow corporate policy and obtain the district

manager’s approval before hiring or firing hourly employees.29 Family Dollar’s

policies do not require that store managers’ hiring or firing recommendations be

given any particular weight. Barkus testified that district managers can veto all

store managers’ recommendations on hiring and firing. However, district

managers frequently follow the store managers’ hiring and firing

recommendations.

District managers set the rate of pay for all hourly employees (assistant

managers and sales associates) and must approve all pay increases.30 District

Q. And you recall no point in time during your seven years at Family Dollar that that
wasn’t the policy, do you?
A. No, I don’t.
28
In addition, “Strand 4” of Family Dollar’s Professional Development Training
Reference Book provides that, “You must contact your District Managers or Regional Vice
President before conducting a Discharge.”
29
Some district managers allow their store managers to ignore corporate policy and hire
candidates for hourly sales associates positions without obtaining district manager approval. The
manual states the district manager usually meets the associate on her next store visit.
30
The manual indicated that district managers must approve hourly associate raises. “The
District Manager will review wage increase recommendations with the Regional Vice President.
Store Managers will be informed whether or not the recommendations are granted.”

39
managers also evaluate hourly employee performance.31

Only district managers have the power to close a store for bad weather. In

the “Hurricane Warning Procedures” section, the manual instructs store managers

that “[i]f the District manager cannot be located, contact the Regional Vice-

President for recommendations regarding the course of action that should be

taken.”

E. Salary Compared to Hourly Wages

Both parties submitted evidence documenting the average weekly salaries of

all Plaintiffs and the average hourly wages of assistant managers. Plaintiffs’

evidence showed that, from 1999 to 2005, Plaintiff store managers averaged

$599.71 a week in salary.32 Despite the fact that the salary was intended to

31
Plaintiffs’ Trial Exhibit 294 (referencing various portions of “Strand 4”) states that:
The Retention Review allows the Store Manager and District Manager to conduct a
90-day performance appraisal, provide feedback and coaching for Store Associates
and to advise them of their eligibility for certain employee benefits. . . . DM will
schedule in-store visits with all associates who will soon “hit” their 90-day milestone.
. . . Store Manager and District Manager meet with Associate and review information
contained in Retention Review.
32
These are the average salaries for all Plaintiffs (using their Exhibit 278) and Family
Dollar’s average salaries for all store managers nationwide (using its Exhibit 2324):

40
compensate a 52-hour workweek, store managers worked 60 to 70 hours a week.

In other words, from 1999 to 2005, Plaintiff store managers averaged from $9.99

an hour (using Plaintiffs’ average salary figures and a 60-hour workweek) to $8.57

an hour (using Plaintiffs’ average salary figures and a 70-hour workweek). During

the same years, assistant managers were paid hourly and averaged $7.60 an hour.33

All Plaintiffs’ Salaries Nationwide Salaries
(526) 1999: $523 1999: $553
(882) 2000: $542 2000: $573
(940) 2001: $555 2001: $596
(684) 2002: $581 2002: $601
(249) 2003: $623 2003: $606
(123) 2004: $668 2004: $628
(86) 2005: $706 2005: $651
The two sets of figures do not differ materially. For example, there is only a 5% difference
between the 1999 salaries. Plaintiffs’ figures (for 2003 to 2005) benefit Family Dollar by
suggesting that Plaintiffs made more per hour than Family Dollar attempted to show.
Store managers may earn a bonus. Although Family Dollar’s brief cites testimony by a
few store managers showing that the average bonus size was $1,800, it is difficult to factor the
bonus into the salary spread between store managers and assistant managers without an
indication of how often Family Dollar paid such bonuses and to what percentage of store
managers. In any event, the bonus does not substantially increase the range of pay. For example,
even if every store manager earned a $1,800 bonus every year, that translates into $34.61 more
per week. Assuming a 60-hour workweek, that equals an extra $.58 more an hour. Assuming a
70-hour week, it amounts to $.49 more an hour. These small amounts do not alter the analysis of
whether store managers earn “significantly” more than assistant managers.
33
Average hourly salary for store managers:
Store Manager’s Salary Store Manager’s Salary Assistant Manager’s
÷ 60 hours: ÷ 70 hours: Hourly Wage
1999: $8.72 1999: $7.47 1999: $7.11
2000: $9.03 2000: $7.74 2000: $7.19
2001: $9.25 2001: $7.93 2001: $7.43
2002: $9.68 2002: $8.30 2002: $7.65
2003: $10.38 2003: $8.90 2003: $7.79
2004: $11.13 2004: $9.54 2004: $7.88
2005: $11.77 2005: $10.09 2005: $8.18

41
Assuming a 70-hour workweek, store managers earned, on average, roughly the

same (less than a dollar or more per hour) than assistant managers. Assuming a

60-hour week, store managers earned approximately $2 more per hour than

assistant managers in 1999 to 2003 and approximately $3 more per hour in 2004 to

2005. In either event, both sides presented this evidence in order to compare store

manager salaries to the salaries of hourly store employees.

F. Judgment/Verdict

At the close of the evidence, the district court granted judgment as a matter

of law to 163 of the 1,424 Plaintiff store managers, because, according to Family

Dollar’s charts, these 163 did not satisfy the third requirement in the executive

exemption test, i.e., that they customarily and regularly directed the work of two or

more other employees, as required by 29 C.F.R. § 541.1(f) (2003), 29 C.F.R. §

541.100(a) (2006). As to the remaining Plaintiffs, the jury determined Family

Dollar failed to prove they were exempt executive employees.

The jury also found that Family Dollar acted willfully in denying overtime

pay to all Plaintiffs. The jury awarded $1,575,932.12 in overtime pay to the 163

Plaintiffs and $17,516,071.27 in overtime pay to the remaining Plaintiffs. In

calculating this overtime pay, the jury used Family Dollar’s charts that

documented (1) the number of hours that each of the Plaintiffs worked per week,

42
and (2) the amount of back pay owed per Plaintiff for the applicable period.34

III. DECERTIFICATION

A. FLSA’s Similarly Situated Requirement

The FLSA authorizes collective actions against employers accused of

violating the FLSA. 29 U.S.C. § 216(b). Section 216(b) provides that “[a]n action

. . . may be maintained against any employer . . . 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). Thus, to maintain a collective action under the FLSA, plaintiffs

must demonstrate that they are similarly situated. See Anderson v. Cagles, 488

F.3d 945, 952 (11th Cir. 2007).

Participants in a § 216(b) collective action must affirmatively opt into the

suit. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such

action unless he gives his consent in writing to become such a party and such

34
This $1,575,932.12 to 163 Plaintiffs and $17,516,071.27 to the remaining Plaintiffs
totaled $19,092,003.39. Although Plaintiffs requested a much larger amount of back pay based
on a rate of pay using either a 40-hour or 48-hour workweek, the $19,092,003.39 sum
represented Family Dollar’s own calculation of overtime back pay based on Defendant’s Trial
Exhibit 1959, and reflected a rate of pay based on a salary intended to compensate for a 52-hour
workweek. In other words, Family Dollar’s chart divided the store managers’ base salary by 52
hours (not 40 or 48 hours) to determine the hourly rate of pay for Family Dollar’s overtime pay
calculations. Thus, the jury’s use of Family Dollar’s calculations substantially reduced the
verdict amount, and there is no cross-appeal on that issue.
After the verdict, the district court twice adjusted the back pay amount for certain
Plaintiffs for various reasons (such as bankruptcy, judicial estoppel, and standing), and ultimately
entered a March 31, 2006 judgment for back pay of $16,623,989.32, and increased the amount by
$1,164,040.42 on April 6, 2007, for a total back pay judgment of $17,788,029.74.

43
consent is filed in the court in which such action is brought.”). That is, once a

plaintiff files a complaint against an employer, any other similarly situated

employees who want to join must affirmatively consent to be a party and file

written consent with the court. Albritton v. Cagles, 508 F.3d 1012, 1017 (11th

Cir. 2007).35

Because similarly situated employees must affirmatively opt into the

litigation, the decision to certify the action, on its own, does not create a class of

plaintiffs. Rather, the “existence of a collection action under § 216(b) . . .

depend[s] on the active participation of other plaintiffs.” Cameron-Grant v.

Maxim Healthcare Servs. Inc., 347 F.3d 1240, 1249 (11th Cir. 2003) (“Under

§ 216(b), the action does not become a ‘collective’ action unless other plaintiffs

affirmatively opt into the class by giving written and filed consent.”).36 The

35
In Albritton, we stated: “[Section] 216(b) requires that would-be plaintiffs affirmatively
opt in, and that they do so in writing, and that the writing be filed in court before they can be
included in the lawsuit.” 508 F.3d at 1017. The FLSA “does not indicate that opt-in plaintiffs
have a lesser status than named plaintiffs insofar as additional claims are concerned. To the
contrary, by referring to them as ‘party plaintiff[s]’ Congress indicated that opt-in plaintiffs
should have the same status in relation to the claims of the lawsuit as do the named plaintiffs.”
Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003).
36
Unlike opt-in collective actions under § 216(b), a district court’s decision to certify a
Rule 23(b) class binds all the class members. See Cameron-Grant, 347 F.3d at 1249 (detailing
the wide range of differences between § 216(b) collective action and Rule 23 class action); see
also Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n.12 (11th Cir. 1996) (“[I]t is clear that the
requirements for pursuing a § 216(b) class action are independent of, and unrelated to, the
requirements for class action under Rule 23 of the Federal Rules of Civil Procedure.”).

44
benefits of a collective action “depend on employees receiving accurate and timely

notice . . . so that they can make informed decisions about whether to participate.”

See Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S. Ct. 482, 486

(1989). Therefore, the importance of certification, at the initial stage, is that it

authorizes either the parties, or the court itself, to facilitate notice of the action to

similarly situated employees. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,

1218 (11th Cir. 2001).37 After being given notice, putative class members have

the opportunity to opt-in. The action proceeds throughout discovery as a

representative action for those who opt-in. See id.

The key to starting the motors of a collective action is a showing that there

is a similarly situated group of employees. See Anderson, 488 F.3d at 953; Hipp,

252 F.3d at 1217. The FLSA itself does not define how similar the employees

must be before the case may proceed as a collective action. And we have not

adopted a precise definition of the term.

Without defining “similarly,” we provided some guidance in Dybach v.

State of Florida Department of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991).

37
Although Hipp involved a collective action brought under the Age Discrimination and
Employment Act of 1967, 29 U.S.C. §§ 621 et seq., that statute incorporates the FLSA’s
collective action mechanism, see 29 U.S.C. § 626(b). Therefore, “Hipp . . . applies in both
contexts.” Albritton, 508 F.3d at 1014 n.1; Cameron-Grant, 347 F.3d at 1243 n.2.

45
There, we emphasized that before facilitating notice, a “district court should

satisfy itself that there are other employees . . . who desire to ‘opt-in’ and who are

‘similarly situated’ with respect to their job requirements and with regard to their

pay provisions.” Id. at 1567-68. Later, in Grayson v. K Mart Corp., we instructed

that under § 216(b), courts determine whether employees are similarly

situated–not whether their positions are identical. 79 F.3d 1086, 1096 (11th Cir.

1996). In other words, we explained what the term does not mean–not what it

does.38

Further, we review a district court’s § 216(b) certification for abuse of

discretion. Hipp, 252 F.3d at 1217; Grayson, 79 F.3d at 1097. Judicial discretion

in making a § 216(b) certification decision is, of course, not unbridled. Indeed,

“‘[a] district court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination, or makes findings of

fact that are clearly erroneous.’” Anderson, 488 F.3d at 953-54 (quoting Chicago

Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001)).

38
It appears that we are not the only ones. See Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1105 (10th Cir. 2001) (referring to Eleventh Circuit’s “ad hoc” approach as
“[a]rguably . . . the best of the three approaches” taken by various circuits, refusing to endorse
any particular approach, and reviewing for “abuse of discretion”); Mooney v. Aramco Servs. Co.,
54 F.3d 1207, 1213-16 (5th Cir. 1995) (describing it as “remarkable” that a number of courts
have failed to formally define “similarly situated,” referring to such approaches as “ad hoc,” but
refusing to adopt any formal definition or set of factors), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148 (2003).

46
The district court first must apply the proper legal standards for authorizing a

§ 216(b) collective action and for determining what similarly situated means. A

court’s determination that the evidence shows a particular group of opt-in

plaintiffs are similarly situated is a finding of fact. Anderson, 488 F.3d at 954

(affirming decision to decertify based on conclusion “that the district court’s view

of the evidence is reasonable, and its findings, therefore, are not clearly

erroneous”); Hipp, 252 F.3d at 1208 (noting that decertification decision is one

where the court “makes a factual determination on the similarly situated

question”). We will reverse the district court’s fact-finding that Plaintiffs are

similarly situated only if it is clearly erroneous–not simply because we might have

made a different call. Anderson, 488 F.3d at 953-54 (citing McMahon v. Toto,

256 F.3d 1120, 1128 (11th Cir. 2001)).

B. Two-Stage Procedure for Determining Certification

While not requiring a rigid process for determining similarity, we have

sanctioned a two-stage procedure for district courts to effectively manage FLSA

collective actions in the pretrial phase. The first step of whether a collective

action should be certified is the notice stage. Anderson, 488 F.3d at 952-53; Hipp,

252 F.3d at 1218. Here, a district court determines whether other similarly

situated employees should be notified.

47
 A plaintiff has the burden of showing a “reasonable basis” for his claim that

there are other similarly situated employees. See Anderson, 488 F.3d at 952;

Grayson, 79 F.3d at 1097; Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir.

1983).39 We have described the standard for determining similarity, at this initial

stage, as “not particularly stringent,” Hipp, 252 F.3d at 1214, “fairly lenient,” id. at

1218, “flexib[le],” id. at 1219, “not heavy,” Grayson, 79 F.3d at 1097, and “less

stringent than that for joinder under Rule 20(a) or for separate trials under 42(b),”

id. at 1096. In 2007, we recounted our law and noted that at the initial stage,

courts apply a “fairly lenient standard.” Anderson, 488 F.3d at 953; see Hipp, 252

F.3d at 1218. The district court’s broad discretion at the notice stage is thus

constrained, to some extent, by the leniency of the standard for the exercise of that

discretion. Nonetheless, there must be more than “only counsel’s unsupported

assertions that FLSA violations [are] widespread and that additional plaintiffs

would come from other stores.” Haynes, 696 F.2d at 887.

This first step is also referred to as conditional certification since the

39
“In Grayson, we interpreted the FLSA’s collective action provision to require plaintiffs
alleging age discrimination to ‘demonstrat[e] a reasonable basis for their claim of class-wide
discrimination . . . by making substantial allegations of class-wide discrimination, that is, detailed
allegations supported by affidavits which successfully engage defendants’ affidavits to the
contrary.’” Anderson, 488 F.3d at 952. Likewise, in Haynes, we stated: “As a preliminary
matter, it is not disputed that plaintiffs have the burden of demonstrating a reasonable basis for
crediting their assertions that aggrieved individuals existed in the broad class that they
proposed.” Haynes, 696 F.2d at 887.

48
decision may be reexamined once the case is ready for trial. Albritton, 508 F.3d at

1014 (discussing Hipp’s first stage as “conditionally certifying the collective

action”); Anderson, 488 F.3d at 952 (stating district court certified collective

action, “but only conditionally,” noting the possibility of later decertifying once

discovery is substantially over).40

The second stage is triggered by an employer’s motion for decertification.

Anderson, 488 F.3d at 953. At this point, the district court has a much thicker

record than it had at the notice stage, and can therefore make a more informed

factual determination of similarity. Id. This second stage is less lenient, and the

plaintiff bears a heavier burden. Id. (citing Thiessen v. Gen. Elec. Capital Corp.,

267 F.3d 1095, 1103 (10th Cir. 2001)).

In Anderson, we again refused to draw bright lines in defining similarly, but

explained that as more legally significant differences appear amongst the opt-ins,

the less likely it is that the group of employees is similarly situated. Id. (“Exactly

how much less lenient we need not specify, though logically the more material

distinctions revealed by the evidence, the more likely the district court is to

40
District courts following the two-step Hipp approach should treat the initial decision to
certify and the decision to notify potential collective action members as synonymous. Indeed,
Hipp collapses the two questions by describing the first stage of certification as “the notice
stage.” Hipp, 252 F.3d at 1218. Our circuit precedent on notice is, for the purpose of a Hipp
analysis, the same as our law on the question of conditional, and initial, certification.

49
decertify the collective action.”). We also refused to “specify how plaintiffs’

burden of demonstrating that a collective action is warranted differs at the second

stage.” Id. Rather, we emphasized the fact that the “ultimate decision rests largely

within the district court’s discretion,” and clarified that in order to overcome the

defendant’s evidence, a plaintiff must rely on more than just “allegations and

affidavits.” Id. Because the second stage usually occurs just before the end of

discovery, or at its close, the district court likely has a more extensive and detailed

factual record.

In Anderson, we also quoted approvingly of Thiessen, where the Tenth

Circuit identified a number of factors that courts should consider at the second

stage, such as: “(1) disparate factual and employment settings of the individual

plaintiffs; (2) the various defenses available to defendant[s] [that] appear to be

individual to each plaintiff; [and] (3) fairness and procedural considerations[.]”

Anderson, 488 F.3d at 953 (quoting with approval Thiessen, 267 F.3d at 1103);

see also Mooney, 54 F.3d at 1213 n.7, 1215-16. Thus, at the second stage,

“although the FLSA does not require potential class members to hold identical

positions, the similarities necessary to maintain a collective action under § 216(b)

must extend beyond the mere facts of job duties and pay provisions” and

encompass the defenses to some extent. Anderson, 488 F.3d at 953 (citation and

50
quotation marks omitted). For example, the district court must consider whether

the defenses that apply to the opt-in plaintiffs’ claims are similar to one another or

whether they vary significantly. Id. at 954 n.8 (noting that all named plaintiffs

were unionized but some opt-in plaintiffs were not, making the collective

bargaining agreement defense applicable to some but not all plaintiffs). But

ultimately, whether a collective action is appropriate depends largely on the

factual question of whether the plaintiff employees are similarly situated to one

another.

C. District Court’s Denial of Decertification

Turning to this case and applying our circuit precedent, we conclude that

Family Dollar has not shown that the district court abused its discretion in denying

Family Dollar’s motion for decertification.

First, the district court not only properly followed the two-stage procedure

for certifying a § 216(b) collective action but also demanded even more evidence

than required before certifying the case at the first notice stage. We recounted the

procedural background at great length because it readily reveals that the district

court proceeded very cautiously and required much more than mere allegations of

similarity. The district court denied stage one certification two times, without

prejudice, and continued to reexamine its decision as the parties gathered and

51
presented additional evidence. The district court conditionally certified the

collective action only after the parties filed the depositions of the named Plaintiffs

and multiple affidavits and after making detailed fact-findings that Plaintiffs’ jobs

were similar.41

Subsequently, after three more years of discovery, the district court relied on

a fully developed record when it denied Family Dollar’s motion for

decertification, and again based its decision on detailed fact-findings. The

procedural background shows that the issue of whether these 1,424 Plaintiffs were

similarly situated was exhaustively litigated in the district court for over four

years. At each step of the process, the district court also applied the correct legal

standards under the FLSA for collection actions.

Second, and more importantly, ample evidence supports the district court’s

fact-findings that the Plaintiff store managers were similarly situated under

§ 216(b). The district court, at the second stage, had a complete and

comprehensive record and found that the opt-in store managers were factually

41
In some cases, the district court’s first-stage certification analysis is properly based on
plaintiffs’ pleadings and affidavits, Anderson, 488 F.3d at 952-53, or on affidavits and deposition
transcripts, Cameron-Grant v. Maxim, 347 F.3d 1240, 1244 (11th Cir. 2003); Grayson, 79 F.3d at
1097. Sometimes only limited information is available at the notice stage and detailed pleadings
and affidavits may suffice. We do not hold that the amount of discovery that preceded the first-
stage certification here is required but only that the district court had an ample “reasonable basis”
to support its 2002 certification order.

52
similar in a number of respects including: (1) their universal classification as store

managers with the same job duties; (2) the small fraction of time they spent on

managerial duties; (3) the large amount of time they spent on non-managerial

duties such as stocking shelves, running the cash registers, unloading trucks, and

performing janitorial work; (4) the restrictions on their power to manage stores as

compared to the district manager’s sweeping managerial discretion; (5) the amount

of close district manager supervision of store managers; (6) the lack of managerial

discretion that Family Dollar corporate policies afforded to store managers; (7)

their day-to-day responsibilities; (8) their receiving base salaries regardless of the

hours worked and no overtime pay; (9) their sharing certain managerial duties with

hourly employees; (10) their maintaining production and sales records; (11) their

inability to authorize pay raises; (12) their power to train subordinates; (13) their

restricted authority to close stores in the event of emergencies; and (14) their

inability to select outside vendors without district manager approval.42

42
In its 2002 certification order, the district court found that Plaintiffs could not hire,
discipline, or terminate employees without district manager approval. In its 2005 order denying
decertification, the court narrowed this to assistant managers, finding store managers could not
hire, discipline, or terminate assistant managers without district manager approval. As discussed
earlier in section II, store managers were generally not authorized to hire or fire assistant
managers without district manager approval, which supports the district court’s 2005 finding.
The evidence shows, however, that store managers could give verbal and written discipline
warnings to all employees, including assistant managers. So although the district court erred in
this finding as to discipline, the store managers nonetheless remained similarly situated as to
discipline of assistant managers and other employees.

53
 We recognize Family Dollar’s assertion that the duties of store managers

varied significantly depending on the store’s size, sales volume, region, and

district. But there was scant evidence to support this argument. Rather, the bulk

of evidence demonstrated that the store managers were similarly situated and even

Family Dollar perceived no such distinction. Indeed, it exempted all store

managers from overtime pay requirements without regard to store size, sales

volume, region, district, or hiring and firing authority.43

As to the second factor, whether there were defenses individual to each

Plaintiff, Family Dollar argues the executive exemption defense is always

individualized and fact specific, thereby precluding this collective action. As

discussed later, applying the executive exemption is “an inherently fact-based

inquiry” that depends on the many details of the particular job duties and actual

work performed by the employee seeking overtime pay. See Rodriguez v. Farm

Stores Grocery, Inc., 518 F.3d 1259, 1263 (11th Cir. 2008). But Family Dollar

ignores the overwhelming evidence showing that the Plaintiffs, as a group, shared

a number of factual details with respect to their job duties and day-to-day work.

Just because the inquiry is fact-intensive does not preclude a collective action

43
Although the Grayson and Hipp plaintiffs worked in several states, this Court concluded
that they met the similarly situated requirement. Grayson, 79 F.3d at 1091; Hipp, 252 F.3d at
1219.

54
where plaintiffs share common job traits. Given the volume of evidence showing

the store managers were similarly situated, and the fact that Family Dollar applied

the executive exemption across-the-board to every store manager–no matter the

size, region, or sales volume of the store–Family Dollar has not shown clear error

in the district court’s finding that its defenses were not so individually tailored to

each Plaintiff as to make this collective action unwarranted or unmanageable.44

As to the third factor, fairness and procedural considerations, we reject

Family Dollar’s contention that given the size of the class, the individualized

application of the exemption defense, and the court’s decision to allow

representative testimony at trial, any collective action would be inherently unfair.

44
Family Dollar relies heavily, both in the district court and on appeal, on charts that
summarize the store managers’ deposition testimony. Family Dollar argues the charts illustrate
that store managers’ duties differed substantially. Plaintiffs also submitted charts that summarize
the similarity in their duties. These charts were not used at trial–only at the decertification stage.
The parties’ respective charts not only conflict as to what the deposition testimony shows,
but also fail to paint a full picture. For example, according to Family Dollar’s chart, Mary
Kimsey had the “authority to hire” (depicted by a “Y” in the “Authority to Hire” column). But
Kimsey’s deposition shows that she lacked the power to hire assistant managers (although she
did have the power to hire sales clerks). The chart suggests that she had the power to discipline
subordinates. But according to her deposition, her ability to discipline was contingent on district
manager approval. Where Family Dollar’s chart indicates that Kimsey “set or adjust[ed] the
hours of employees,” she actually testified that she had some flexibility to adjust hours, but that
she was heavily constrained by the corporate planner and the district manager.
Furthermore, Family Dollar’s charts do not include all of the factors, discussed later, that
courts examine when making an executive exemption inquiry. Family Dollar’s charts mostly
addressed a store manager’s authority to hire, fire, interview, train, and discipline other
employees. But they did not address many other aspects of a store manager’s day-to-day duties.
In any event, the district court was free to assess the quality of the charts, and there was ample
evidence to support the court’s fact-findings that the Plaintiffs were similarly situated.

55
There is nothing inherently unfair about collectively litigating an affirmative

executive-exemption defense where the district court has made well-supported and

detailed findings with respect to similarity. Indeed, the more similar the

employees, the less likely that collectively litigating the executive-exemption issue

can be fundamentally unfair. And to repeat, there was abundant evidence that

Plaintiffs’ actual jobs were the same, or, at a minimum, substantially similar.45

In addition, Plaintiffs’ evidence established that Family Dollar uniformly

exempted all store managers from overtime pay requirements, and its exemption

decision did not turn on any individualized factors. Not one. There is nothing

unfair about litigating a single corporate decision in a single collective action,

especially where there is robust evidence that store managers perform uniform,

cookie-cutter tasks mandated by a one-size-fits-all corporate manual.46

45
We do not suggest that a collective action needs to have 14 significant job factors in
common in order to be, or stay, certified or that less commonality would not have survived a
decertification motion. Rather, we highlight the number of similarities only to show that the
decertification decision is not close here.
46
Just because a business classifies all employees in a particular job category as exempt
does not mean that those employees are necessarily “similarly situated” for purposes of a 29
U.S.C. § 216(b) collective action. Rather, it is necessary to review the actual job duties of those
in that job category to determine whether they are similarly situated and whether the exemption
defense can be collectively litigated. Here, Family Dollar argues the store’s size, sales volume,
and location cause store managers’ job duties to vary and preclude a collective trial. The
facts–that Family Dollar never examined how store managers spent their time and that none of
those factors had anything to do with Family Dollar’s decision to exempt all store managers from
overtime pay–counter Family Dollar’s argument in that regard.

56
 Addressing whether Plaintiffs’ claims could be tried fairly as a collective

action also requires looking to the purposes of § 216(b) actions under the FLSA:

(1) reducing the burden on plaintiffs through the pooling of resources, and (2)

efficiently resolving common issues of law and fact that arise from the same

illegal conduct. See Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170, 110

S. Ct. 482 (1989) (noting a collective action affords plaintiffs the “advantage of

lower individual costs to vindicate rights by the pooling of resources” and “[t]he

judicial system benefits by efficient resolution in one proceeding of common

issues of law and fact”). We also bear in mind that the FLSA is a remedial statute

that should be liberally construed. Prickett v. DeKalb County, 349 F.3d 1294,

1296 (11th Cir. 2003) (“FLSA is a remedial statute that has been construed

liberally to apply to the furthest reaches consistent with congressional direction.”

(quotation marks omitted)). Oddly, the thrust of Family Dollar’s fairness

argument butts up against the purpose of a collective action–to efficiently resolve

a large number of plaintiffs’ claims.47 Therefore, generally speaking, the size of an

47
On appeal, Family Dollar does not contend it was denied a fair opportunity to present its
statute of limitations defense. Family Dollar produced detailed records of each of the 1,424
Plaintiffs’ employment dates. Since the date on which each Plaintiff joined this lawsuit is a
matter of public record, the parties submitted charts showing the amount of back pay owed for
each plaintiff for both a two-year and a three-year time period. Thus, once the jury decided the
executive exemption issue in Plaintiffs’ favor, the jury had the necessary evidence in chart form
to limit Plaintiffs’ back pay to either two or three years. This underscores how collective actions
about overtime pay can be readily and fairly managed. Plus, this is not a case of borderline

57
FLSA collective action does not, on its own, compel the conclusion that a decision

to collectively litigate a case is inherently unfair.

Furthermore, Family Dollar’s decertification argument is, at root, a claim

that the district court’s subsequent use of representative testimony during the

actual trial was inherently unfair. As discussed later, Family Dollar’s

representative-testimony assertion–that the district court allowed the jury to decide

1,424 claims based on the testimony of only seven named Plaintiffs–is not

supported by the record. In any event, we examine the evidence before the court

when it heard Family Dollar’s motion to decertify. See Haynes, 696 F.2d at 887

(“Our review of that decision must be premised upon the evidence that was before

the district court at that time.”). We are persuaded that, before trial, fairness

considerations militated in favor of allowing this overtime-pay action to proceed

in a collective forum. Given the substantial similarity of the class members’ jobs

and uniform corporate treatment of the store managers, it would not serve the

interest of judicial economy to require these overtime-pay claims to be adjudicated

in 1,424 individual trials. Based on the record in this case, we cannot say the

district court abused its discretion in denying Family Dollar’s motion for

similarity among the Plaintiffs, but one of heightened similarity, which significantly adds to our
fairness conclusion.

58
decertification.

IV. EXECUTIVE EXEMPTION DEFENSE

A. FLSA’s Executive Exemption

The FLSA requires that employers pay their employees time and a half for

hours an employee works in excess of a 40-hour workweek. 29 U.S.C.

§ 207(a)(1); Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,

1156 (11th Cir. 2008); Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir.

2007). But there are exemptions to this requirement. Alvarez Perez, 515 F.3d at

1156. The exemption at issue here, the executive exemption, provides that the

FLSA’s requirements “shall not apply with respect to . . . any employee employed

in a bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1).

The Department of Labor’s (“DOL”) regulations interpret this defense.

Because Plaintiffs’ claims span from 1999 until 2005, two sets of DOL regulations

apply. The regulations that were in effect prior to August 23, 2004 (the “old

regulations”) contain a short test that defines the phrase “employee employed in a

bona fide executive capacity.”48 29 C.F.R. § 541.1 (2003) (ellipsis omitted). This

48
The old regulations had a long test and a short test. The long test applied to those who
made not less than $155 a week. 29 C.F.R. § 541.1(a)-(f) (2003). The short test, on the other
hand, applied to those making not less than $250 a week. 29 C.F.R. § 541.1(f) (2003). The
entire test was contained in section (f), and it was therefore “short” in comparison to the longer
test contained in § 541.1(a)-(f) (2003). See Atlanta Prof’l Firefighters Union, Local 134 v. City
of Atlanta, 920 F.2d 800, 804-05 (11th Cir. 1991).

59
short test has three requirements: (1) an employee “is compensated on a salary

basis at a rate of not less than $250 per week,” (2) his “primary duty consists of

the management of the enterprise in which the employee is employed or of a

customarily recognized department or subdivision thereof,” and (3) his work

“includes the customary and regular direction of the work of two or more other

employees.” Id. (2003); Rodriguez, 518 F.3d at 1263; Brock v. Norman’s Country

Mkt., Inc., 835 F.2d 823, 825 (11th Cir. 1988).49

After August 23, 2004, the new regulations apply and add a fourth

requirement. To establish an employee is a bona fide executive, an employer must

show: (1) the employee is “[c]ompensated on a salary basis at a rate of not less

than $455 per week”; (2) the employee’s “primary duty is management of the

enterprise in which the employee is employed or of a customarily recognized

department or subdivision thereof”; (3) the employee “customarily and regularly

directs the work of two or more other employees”; and (4) the employee “has the

The current regulations (effective August 23, 2004) abolished the distinction between the
long and short tests. See Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,122-25 (Apr. 23,
2004) (codified at 29 C.F.R. pt. 541) (explaining reasons for the August 23, 2004 change). The
Plaintiffs whose claims involve conduct that occurred prior to August 23, 2004 all earned more
than $250 a week. Therefore, only the short test under the old regulations and the August 23,
2004 regulations apply to this case.
49
We cite the pre-August 23, 2004 regulations with a 2003 citation and the post-August
23, 2004 ones with a 2006 citation.

60
authority to hire or fire other employees or whose suggestions and

recommendations as to the hiring, firing, advancement, promotion or any other

change of status of other employees are given particular weight.” 29 C.F.R. §

541.100(a) (2006).50

The parties agree that the first element of the executive exemption test–the

amount of salary–is met. But they hotly dispute the second element–whether the

store managers’ primary duty is management. Thus, we examine the second

element.

B. Primary Duty Is Management

Both regulations require that the employee’s primary duty is management.

The old regulations give these examples of managerial tasks:

Interviewing, selecting, and training of employees; setting and adjusting
their rates of pay and hours of work; directing their work; maintaining
their production or sales records for use in supervision or control;
appraising their productivity and efficiency for the purpose of

50
The new regulations explain the determination of whether an employee’s
recommendations are given particular weight includes consideration of:
whether it is part of the employee’s job duties to make such suggestions and
recommendations; the frequency with which such suggestions and recommendations
are made or requested; and the frequency with which the employee’s suggestions and
recommendations are relied upon. . . . An employee’s suggestions and
recommendations may still be deemed to have “particular weight” even if a higher
level manager’s recommendation has more importance and even if the employee does
not have authority to make the ultimate decision as to the employee’s change in
status.
29 C.F.R. § 541.105 (2006).

61
 recommending promotions or other changes in their status; handling
their complaints and grievances and disciplining them when necessary;
planning the work; determining the techniques to be used; apportioning
the work among the workers; determining the type of materials,
supplies, machinery or tools to be used or merchandise to be bought,
stocked and sold; controlling the flow and distribution of materials or
merchandise and supplies; providing for the safety of the men and the
property.

29 C.F.R. § 541.102(b) (2003).51 The new regulations are similar and explain that

generally, management includes, but is not limited to, the same conduct listed in

the old regulations, but adds these examples of managerial tasks: “planning and

controlling the budget; and monitoring or implementing legal compliance

measures.”52 29 C.F.R. § 541.102 (2006).

The old and new regulations do not define primary duty. Both indicate the

51
While the new regulations elevate the employee’s hiring and firing authority to a fourth,
separate requirement, the old regulations likewise considered the selection of employees as a
management task under the primary duty inquiry.
52
The new regulations list these management tasks:
[I]nterviewing, selecting, and training of employees; setting and adjusting their rates
of pay and hours of work; directing the work of employees; maintaining production
or sales records for use in supervision or control; appraising employees’ productivity
and efficiency for the purpose of recommending promotions or other changes in
status; handling employee complaints and grievances; disciplining employees;
planning the work; determining the techniques to be used; apportioning the work
among the employees; determining the type of materials, supplies, machinery,
equipment or tools to be used or merchandise to be bought, stocked and sold;
controlling the flow and distribution of materials or merchandise and supplies;
providing for the safety and security of the employees or the property; planning and
controlling the budget; and monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102 (2006).

62
answer to the primary duty question “must be based on all the facts in a particular

case.” 29 C.F.R. § 541.700(a) (2006); 29 C.F.R. § 541.103 (2003). Both

regulations identify factors to consider when determining whether an employee’s

primary duty is managerial. See 29 C.F.R. § 541.700(a) (2006); 29 C.F.R. §

541.103 (2003).

The old regulations list these five factors: (1) “[t]he amount of time spent in

the performance of the managerial duties”; (2) “the relative importance of the

managerial duties as compared with other types of duties”; (3) “the frequency with

which the employee exercises discretionary powers”; (4) “his relative freedom

from supervision”; and (5) “the relationship between [the employee’s] salary and

the wages paid other employees for the kind of nonexempt work performed by the

supervisor.” 29 C.F.R. § 541.103 (2003); see also Rodriguez, 518 F.3d at 1264

(listing factors in § 541.103 to be analyzed in determining whether an employee’s

primary duty is management). The old regulations explain: “In the ordinary case it

may be taken as a good rule of thumb that primary duty means the major part, or

over 50 percent, of the employee’s time. Thus, an employee who spends over 50

percent of his time in management would have management as his primary duty.”

29 C.F.R. § 541.103 (2003). The regulations then hedge a bit, and state that

“[t]ime alone . . . is not the sole test . . . .” Id. (2003). Where the employee does

63
not spend over 50% of his time on management, “he might nevertheless have

management as his primary duty if the other pertinent factors support such a

conclusion.” Id. (2003).

The new regulations make a stronger effort to define primary duty, stating

that “[t]he term ‘primary duty’ means the principal, main, major or most important

duty that the employee performs.” 29 C.F.R. § 541.700(a) (2006). The new

regulations also add that this determination is to be made “with the major

emphasis on the character of the employee’s job as a whole.” Id. (2006). The new

regulations explicitly reference the same factors with one exception. The third

factor–“the frequency with which the employee exercises discretionary

powers”–has been deleted.53 Compare id. (2006), with 29 C.F.R. § 541.103

(2003).

The new regulations, like the old, expand upon the time-spent-on-exempt-

work factor. The new regulations state that this factor “can be a useful guide in

determining whether exempt work is the primary duty of an employee” and that

53
The new regulations list these factors to consider for the primary duty inquiry:
[T]he 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.
29 C.F.R. § 541.700(a) (2006).

64
“employees who spend more than 50 percent of their time performing exempt

work will generally satisfy the primary duty requirement.” 29 C.F.R. § 541.700(b)

(2006). As in the old ones, the new regulations specify that “[t]ime alone,

however, is not the sole test” and thus “[e]mployees who do not spend more than

50 percent of their time performing exempt duties may nonetheless meet the

primary duty requirement if the other factors support such a conclusion.” Id.

(2006).

The new regulations also clarify that “[c]oncurrent performance of exempt

and nonexempt work does not disqualify an employee from the executive

exemption if the requirements of § 541.100 are otherwise met.” Id. § 541.106(a)

(2006). In other words, an employee’s performance of nonexempt work does not

preclude the exemption if the employee’s primary duty remains management.54

Similarly, an employee whose primary duty is to perform nonexempt work does

not become exempt merely because she has some responsibility for occasionally

54
The new regulations illustrate the concept of “concurrent duties”:
For example, an assistant manager in a retail establishment may perform work such
as serving customers, cooking food, stocking shelves and cleaning the
establishment, but performance of such nonexempt work does not preclude the
exemption if the assistant manager’s primary duty is management. An assistant
manager can supervise employees and serve customers at the same time without
losing the exemption. An exempt employee can also simultaneously direct the work
of other employees and stock shelves.
29 C.F.R. § 541.106(b) (2006) (emphasis added).

65
directing the work of nonexempt employees.55 “Whether an employee meets the

requirements of § 541.100 when the employee performs concurrent duties is

determined on a case-by-case basis” and based on the factors already set forth in §

541.700(a) as to the primary duty question. Id. (2006).

We turn to Family Dollar’s argument that the primary duty of its store

managers is managerial, triggering the FLSA’s executive exemption, and that the

court erred in denying Family Dollar’s motion for judgment as a matter of law.

C. Family Dollar’s Motion for Judgment as a Matter of Law

Family Dollar bears the burden of proving its executive exemption

affirmative defense. Alvarez Perez, 515 F.3d at 1156; Brock, 835 F.2d at 826.

This Court has recognized the “Supreme Court’s admonition that courts closely

circumscribe the FLSA’s exceptions.” Nicholson v. World Bus. Network, Inc.,

105 F.3d 1361, 1364 (11th Cir. 1997). And the exemption “is to be applied only

to those clearly and unmistakably within the terms and spirit of the exemption.”

55
The new regulations illustrate this proposition through this example:
[A] relief supervisor or working supervisor whose primary duty is performing
nonexempt work on the production line in a manufacturing plant does not become
exempt merely because the nonexempt production line employee occasionally has
some responsibility for directing the work of other nonexempt production line
employees when, for example, the exempt supervisor is unavailable. Similarly, an
employee whose primary duty is to work as an electrician is not an exempt executive
even if the employee also directs the work of other employees on the job site, orders
parts and materials for the job, and handles requests from the prime contractor.
29 C.F.R. § 541.106(c) (2006) (emphasis added).

66
Brock, 835 F.2d at 826 (quotation marks omitted). Therefore, we narrowly

construe exemptions to the FLSA overtime requirement. Alvarez Perez, 515 F.3d

at 1156 (stating “exemptions are to be construed narrowly” (quotation marks

omitted)); Nicholson, 105 F.3d at 1364.

We have rejected a “categorical approach” to deciding whether an employee

is an exempt executive. Rodriguez, 518 F.3d at 1264. Instead, we have noted the

“necessarily fact-intensive nature of the primary duty inquiry,” that “the answer is

in the details,” and that “[w]here an issue turns on the particular facts and

circumstances of a case, it is not unusual for there to be evidence on both sides of

the question, with the result hanging in the balance.” Id. And “[t]he result

reached must be left intact if there is evidence from which the decision maker, the

jury in this instance, reasonably could have resolved the matter the way it did.” Id.

Here, the trial evidence was legally sufficient for a reasonable jury to find

that Family Dollar failed to meet its burden of proving that its store managers’

primary duty was management. Because that evidence is detailed above, we do

not recount it but focus on the factors in the primary duty inquiry.56

56
Family Dollar does not argue that the old and new regulations lead to different results in
the primary duty inquiry here. Thus, we need not distinguish between them in our analysis.
Although Rodriguez was decided under the old regulations, 518 F.3d at 1262 n.2, its focus on the
“fact-intensive nature of the primary duty inquiry” is correct under the new regulations too, see
29 C.F.R. § 541.700(a) (2006).

67
 As to the time-spent-on-exempt-work factor, the overwhelming evidence at

trial showed Plaintiff store managers spent 80 to 90% of their time performing

nonexempt, manual labor, such as stocking shelves, running the cash registers,

unloading trucks, and cleaning the parking lots, floors, and bathrooms.

Conversely, Plaintiff store managers spent only 10 to 20% of their time

performing exempt work, a far cry from the DOL’s 50% guideline for management

tasks. See 29 C.F.R. § 541.700(b) (2006); 29 C.F.R. § 541.103 (2003). Family

Dollar did not present evidence to the contrary. See Allen, 495 F.3d at 1315 (“The

employer is in a superior position to know and produce the most probative facts

concerning the nature and amount of work performed . . . .”). In fact, Family

Dollar executives Barkus and Broome testified that Family Dollar never studied

what store managers actually did on a day-to-day basis or the amount of time store

managers spent on managerial duties.

We recognize that the amount of time spent performing exempt tasks is not

dispositive of the primary duty issue. But substantial evidence about the four

other factors also supports the jury’s verdict here.

As to the relative importance of store managers’ managerial duties

compared with their nonexempt duties, this factor weighs in favor of the jury’s

finding that store managers are not exempt executives. Admittedly, the store

68
managers’ job description includes managerial duties. But Family Dollar’s job

description of the store managers’ “Essential Job Functions” provides that store

managers must do the same work as stock clerks and cashiers. Store managers

must work their store’s preassigned merchandise delivery day, known as “truck

day.” Barkus acknowledged that store managers spent their delivery-day time

doing manual labor. Rather than treat these manual tasks as an incidental part of a

managerial job, Family Dollar describes them as essential. A large amount of

manual labor by store managers was a key to Family Dollar’s business model

given each store’s limited payroll budget and the large amount of manual labor

that had to be performed. The jury was free to weigh the relative importance of

the store managers’ managerial and non-managerial duties, but ample evidence

supported a finding that the non-managerial tasks not only consumed 90% of a

store manager’s time but were of equal or greater importance to a store’s

functioning and success.

The third factor in the old regulations–the frequency with which the

employee exercises discretionary powers–also supports the jury’s verdict.57 There

57
As noted above, the new regulations omit this discretionary-power factor, but they retain
the freedom-from-supervision factor. Having discretionary power is one aspect of freedom from
supervision. In addition, the new regulations specify that the determination of an employee’s
primary duty includes, but is not limited to, the listed factors and is to be made “with the major
emphasis on the character of the employee’s job as a whole.” 29 C.F.R. § 541.700(a) (2006).
Thus, the new regulations do not preclude, and are consistent with, our consideration of the

69
was overwhelming evidence that store managers spent only 10 to 20% of their

time on exempt (i.e., managerial) work. Plaintiffs presented evidence that store

managers rarely exercised discretion because either the operations manuals or the

district managers’ directives controlled virtually every aspect of a store’s day-to-

day operations. 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. The manuals even

instruct store managers on the smallest details, such as how to arrange clip boards,

what items go in each of the four drawers of the single file cabinet, and how to

remove spots and chewing gum from store mats.

The few decisions not mandated by the manuals and corporate headquarters

are vested in the district manager. These decisions include the power to change

store hours, close for bad weather, approve changes to store layouts, establish all

employees’ initial rates of pay, approve all pay raises, set payroll budgets, control

the total labor hours allocated to each store, approve the hiring and firing of

assistant managers, and even approve the use of appliances such as coffee pots.

Even when a store manager exercised discretion in scheduling employees for the

frequency with which an employee exercises discretionary powers in our primary duty analysis.

70
week, she did so within the strict constraints of mandatory store hours, a limited

payroll budget, a prohibition on overtime work by hourly employees, and a staff

scheduler. This evidence supports a reasonable jury finding that Family Dollar’s

store managers had few, and infrequently exercised, discretionary powers.

As to the store managers’ relative freedom from supervision, this factor

likewise favors Plaintiffs. The evidence showed that district managers (1)

supervised 10 to 30 stores, (2) headed the store team, (3) were responsible for

enforcing the detailed store operating policies, (4) closely reviewed each store’s

inventory orders and net sales figures, (5) closely monitored each store’s weekly

payroll, (6) controlled employee hourly rates and pay raises, (7) routinely sent to-

do lists and emails with instructions to store managers, (8) closely supervised the

selection, pricing, sales, displays, and ordering of merchandise, and (9) closely

supervised every aspect of store operations. Store managers had little freedom

from direct supervision. Indeed, ample evidence showed that the combination of

sweeping corporate micro-management, close district manager oversight, and

fixed payroll budgets left store managers little choice in how to manage their

stores and with the primary duty of performing manual, not managerial, tasks.58

58
Although Family Dollar emphasizes its store managers had management-type
paperwork to do (such as bank deposits and accident and payroll reports), Family Dollar ignores
that how to do each task was prescribed by the manual and district managers and store managers

71
 As to the last factor–the relationship between the store managers’ salary and

other wages for nonexempt work–the parties submitted evidence documenting the

store managers’ average salaries and the assistant managers’ average hourly wages

from 1999 to 2005. Using a 70-hour workweek, store managers earned, on

average, roughly the same (less than a dollar or more per hour) as hourly assistant

managers. Using a 60-hour workweek, store managers earned approximately two

or three dollars more per hour than hourly assistant managers. The jury was

entitled to consider these salary figures, along with the fact that store managers

performed nonexempt work 80 to 90% of the time. Given the relatively small

difference between the store managers’ and assistant managers’ hourly rates, it

was within the jury’s province to conclude that this factor either did not weigh in

Family Dollar’s favor or at least did not outweigh the other factors in Plaintiffs’

favor.

In sum, there was legally sufficient evidence for the jury, after considering

all of the evidence and weighing the relevant factors,59 to have reasonably

determined that Family Dollar failed to meet its burden of proving that Plaintiff

store managers’ primary duty was management.

had little discretion, under Plaintiffs’ evidence, as to those tasks.
59
The district court explicitly instructed the jury on these factors.

72
D. Other Circuits’ Cases

Despite these factors, Family Dollar insists its store managers were “in

charge” of the store, and therefore, exempt as a matter of law. Family Dollar cites

several cases concluding that managers of a free-standing store or restaurant were

exempt executives as a matter of law. However, the courts made that decision

only after examining the factual details of the employees’ duties and actual work.

As we stated in Rodriguez, such a “particularized approach is consistent with the

DOL regulation, which provides that the ‘determination of whether an employee

has management as his primary duty must be based on all the facts in a particular

case.’” 518 F.3d at 1264 (quoting 29 C.F.R. § 541.103 (2002)); see 29 C.F.R. §

541.700(a) (2006) (stating the primary duty question “must be based on all the

facts in a particular case”); 29 C.F.R. § 541.103 (2003) (same).

In answering the primary duty inquiry, courts do not “simply slap[] on a

talismanic phrase.” Rodriguez, 518 F.3d at 1264. Family Dollar’s “in charge”

label strikes us as a way to bypass a meaningful application of the fact-intensive

factors. As in Rodriguez, we reject that “categorical approach.” Id.

Moreover, Family Dollar’s cases had materially dissimilar facts and did not

involve the combination of (1) store managers performing as high a percentage of

nonexempt work, (2) the same severe degree of restriction on store managers’

73
discretion by corporate policy, and (3) oversight as strict and involved as district

managers’ in this case. For starters, none of the circuit cases dealt with store

managers that spent 80 to 90% of the time performing manual labor. For example,

in Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 499 (6th Cir. 2007), a

store manager spent 60% of her time performing non-managerial duties.60 See

also Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1108-09, 1114 (9th Cir. 2001)

(accepting on summary judgment plaintiffs’ supported assertion they spent “more

than fifty percent of the time” on nonexempt manual tasks but without providing a

concrete figure).61

Family Dollar’s cases are also distinguishable in that they give less weight

60
Importantly, the Sixth Circuit noted that courts cannot rely solely on whether an
employee was “in charge” of the store. Thomas, 506 F.3d at 503. Rather, they must evaluate the
employee’s actual job duties. Id. The court did “not adopt a rule that any employee who is in
charge of a store has management as her primary duty; [it] merely conclude[d] that other cases
stating as much do not conflict with [Sixth Circuit] precedent.” Id. at 503 n.4. “When a court is
asked to consider whether an employee’s primary duty consists of management, the proper
analytical approach is to scrutinize the factors in the Secretary’s regulations, not simply to
determine whether the employee was ‘in charge.’” Id.
61
The Baldwin decision also rests on other materially dissimilar facts. See Baldwin, 266
F.3d at 1108-09, 1115 (stating plaintiffs “had to adhere to company policies” but describing
plaintiffs as “free from daily supervision,” noting that supervisor “visited the park once or twice a
month, and there was no constant oversight,” and that “in practice, the oversight was neither so
rigorous nor so frequent as to undermine the undeniable fact that the Baldwins were substantially
free from supervision”). Further, the Baldwin plaintiffs managed without much interference by
their corporate headquarters. Id. at 1115 (“They managed the park without much participation or
interference from Trailer Inns, Inc.’s Yakima headquarters.”). As noted in Rodriguez, Baldwin
“illustrates the necessarily fact-intensive nature of the primary duty inquiry.” Rodriguez, 518
F.3d at 1264.

74
to the plaintiffs’ estimates of time spent performing nonexempt work because the

plaintiffs in those cases performed exempt and nonexempt work concurrently. See

Thomas, 506 F.3d at 504; Donovan v. Burger King Corp. (“Burger King I”), 672

F.2d 221, 226 (1st Cir. 1982); Baldwin, 266 F.3d at 1114. The evidence, in the

light most favorable to the Plaintiffs here, did not show they performed managerial

and non-managerial tasks concurrently. Rather, there was evidence that, by and

large, the store managers performed most managerial tasks before the store opened

and after it closed. The amount of manual labor overwhelmed their capacity to

perform managerial duties concurrently during store hours. Other evidence

showed the nature of the manual labor prevented store managers from performing

managerial duties concurrently. For example, a store manager unloading a truck

and stocking the storeroom was not concurrently supervising the cashier out front.

The jury may well have given more weight to the Plaintiffs’ evidence that they

spent 80 to 90% of their time solely on nonexempt work.

Even the retail-chain cases with standardized instructions did not involve

fact patterns with the same level of corporate directives or district managers that

constrained the powers of the employees-in-question in quite the same way. For

example, in Burger King I, 672 F.2d at 223, and Donovan v. Burger King Corp.

(“Burger King II”), 675 F.2d 516, 517, 521-22 (2d Cir. 1982), the assistant

75
managers retained discretion over a number of operational decisions, and nothing

suggested the Burger King restaurant manager, the position directly above the

assistant manager, had oversight powers comparable to the ones exercised by

Family Dollar district managers. The Second Circuit described restaurant

managers as “available by phone” and “available for advice”–not as overarching

remote micro-managers. See Burger King II, 675 F.2d at 522. Likewise, in

Murray v. Stuckey’s, Inc., 939 F.2d 614, 616 (8th Cir. 1991), the court’s

description of regional-manager control pales in comparison to the rigid directives

and supervision that Plaintiffs presented at trial. Id. For Family Dollar store

managers, there was evidence that showed district managers and corporate

headquarters made the vast majority of day-to-day decisions, and store managers

had little discretion.

In any event, our affirmance of the jury’s verdict here 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.” More

importantly, while there was “evidence on both sides of the question,” the “jury[,]

in this instance, reasonably could have resolved the matter the way it did.”

Rodriguez, 518 F.3d at 1264. “The issue is not whether the evidence was

sufficient for [Family Dollar] to have won, but whether the evidence was sufficient

76
for it to have lost. It was.” Id. at 1264-65.62

E. 163 Individual Plaintiffs Granted Judgment on
Executive Exemption Defense

Family Dollar also appeals the district court’s decision to grant judgment on

the executive exemption defense as a matter of law to 163 of the 1,424 individual

Plaintiffs. The court concluded that Family Dollar failed to prove these 163

Plaintiffs satisfied the third part of the executive exemption test, i.e., that they

customarily and regularly directed the work of two or more other employees. 29

C.F.R. § 541.100(a) (2006) (identifying third part of executive exemption test as

whether the employee “customarily and regularly directs the work of two or more

other employees”); 29 C.F.R. § 541.1 (2003) (requiring that an exempt employee’s

work “includes the customary and regular direction of the work of two or more

other employees”). As we explain below, Family Dollar has shown no reversible

error on this issue.

Both regulations provide that customarily and regularly means a frequency

62
Family Dollar stresses that its store managers either hired and fired the hourly
employees, or had district managers who frequently followed their hiring and firing
recommendations. Hiring and firing authority is now a fourth, separate requirement in the
executive exemption test; even if met, Family Dollar still has to establish the store managers’
primary duty was management. 29 C.F.R. § 541.100(a) (2006); 29 C.F.R. § 541.1 (2003). While
this is certainly a fact the jury could also consider in making that primary duty determination, the
jury was required to base its decision on all the facts and was not bound to find the store
managers’ primary duty was management due to this authority over hourly employees.

77
that “must be greater than occasional but which, of course, may be less than

constant.”63 29 C.F.R. § 541.701 (2006); 29 C.F.R. § 541.107(b) (2003). The new

regulations add that “[t]asks or work performed ‘customarily and regularly’

includes work normally and recurrently performed every workweek; it does not

include isolated or one-time tasks.” 29 C.F.R. § 541.701 (2006).

Both regulations define “two or more other employees” as either two full-

time workers or their equivalent. 29 C.F.R. § 541.104(a) (2006); 29 C.F.R.

§ 541.105(a) (2003). As to equivalency, an employee may supervise one full-time

employee and two part-time employees. See 29 C.F.R. § 541.105(a) (2003). “For

example, if the ‘executive’ supervises one full-time and two part-time employees

of whom one works morning[s] and one, afternoons; or four part-time employees,

two of whom work mornings and two afternoons, this requirement would be met.”

Id. The new regulations express the same sentiment. See 29 C.F.R. § 541.104(a)

(2006) (“One full-time and two half-time employees, for example, are equivalent

to two full-time employees. Four half-time employees are also equivalent.”).

63
The old regulations did not define “customary and regular” in the short test for the
executive exemption. However, the long test under the old regulations did define the phrase
“customarily and regularly,” albeit with regard to the long test’s separate requirement that an
exempt executive “customarily and regularly exercises discretionary powers” in 29 C.F.R.
§ 541.1(d) (2003). It provided that “customarily and regularly” is “a frequency which must be
greater than occasional but which, of course, may be less than constant.” 29 C.F.R. § 541.107(b)
(2003). Family Dollar cites § 541.107 as a useful definition of “customary and regular.”

78
However, neither set of regulations defines “full-time.”

To prove its store managers customarily and regularly directed the work of

two or more employees, Family Dollar introduced payroll records and easy-to-

digest exhibits summarizing that data. For example, Exhibit 1742C provided data

about each of the 1,424 Plaintiffs including (1) their full names, (2) social security

numbers, (3) the number of weeks each worked as a store manager (under a row

heading entitled “# weeks supervised”), (4) the number of weeks each store

manager had two or more full-time hourly employees working in the store, and (5)

what percentage of time each store manager had two or more full-time hourly

employees. Exhibit 1742C assumed that a full-time employee works 40 hours a

week and that full-time meant 80 hours of employee work per week through any

combination of employees.64

In applying the requirement that an employee “customarily and regularly

directs the work of two or more other employees,” the district court examined

whether store managers supervised 80 subordinate hours of employee work per

week at least 80% of the time. The district court did not require the store

64
To be clear, Family Dollar also submitted other exhibits. But the others assumed that a
full-time employee worked a 30-hour workweek (Exhibit 1742A) or a 35-hour workweek
(Exhibit 1742B). The district court used Exhibit 1742C (based on a 40-hour workweek), which
is why we focus on that exhibit.

79
managers to be present when hourly employees worked those 80 hours–only that

the store employ 80 hours of subordinate employee labor 80% of the time. Using

Family Dollar’s Exhibit 1742C, the district court granted judgment as a matter of

law to 163 salaried Plaintiff store managers whose stores did not meet that

requirement.

Family Dollar argues the court should have used Family Dollar’s internal

definition of full-time as a 30-hour workweek. Although the preamble to the new

regulations states that the DOL declines to clarify the meaning of “full-time,” it

“stands by its current interpretation that an exempt supervisor generally must

direct a total of 80 employee-hours of work each week.”65 Defining and

Delimiting the Exemptions for Executive, Administrative, Professional, Outside

Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,135 (Apr. 23, 2004).

The preamble also states that “circumstances might justify lower standards. For

example, firms in some industries have standard workweeks of 37 ½ hours or 35

hours for their full-time employees. In such cases, supervision of employees

working a total of 70 or 75 hours in a workweek will constitute the equivalent of

65
The DOL Wage and Hour Division’s Field Operations Handbook similarly states that
“[t]wo full-time employees or the equivalent within the meaning of Reg. 541.105(a) is generally
considered to mean 80 hours of work by subordinate employees.” Field Operations Handbook,
§ 22c00(b). This Court has noted that the DOL’s Field Operations Handbook is persuasive, even
though it is not entitled to Chevron deference. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251,
1255 (11th Cir. 2001).

80
two full-time employees.” Id.

Notably, the preamble does not suggest a workweek as short as 30 hours

counts as “full-time” under the FLSA, much less 60 labor hours substituting for 80

hours. Further, Family Dollar’s brief points to no evidence in the trial record

suggesting that the industry standard in its line of retail business is a 30-hour

workweek. While there may be instances where a deviation from the 40-hour

workweek is appropriate, we cannot say that the district court, based on this

record, erred in adopting 80 hours as constituting two full-time employees or their

equivalent in this case.

Although Family Dollar also criticizes the 80% threshold, Family Dollar

does not argue that the court’s effort to quantify the customary-regular

requirement as a percentage of time was error or that the customary-regular issue

should have gone to the jury. Rather, Family Dollar primarily challenges the

district court’s last step in the calculation of whether Plaintiffs met the 80%

threshold. As we noted above, the district court authorized Family Dollar to count

every week that the stores in question had 80 labor hours worked by the hourly

employees, and it did not require the store managers to be physically present at the

81
store during those 80 hours for those weeks to count towards the 80% mark.66

Family Dollar does not challenge that part of the calculation.67 Nor does it

challenge the accuracy of the calculation as to the number of weeks each salaried

store manager worked, the number of weeks hourly employees worked, or the

percentage of time each individual store manager directed the work of two or more

full-time employees or their equivalent. Indeed, the data are from Family Dollar’s

own Exhibit 1742C. The calculations showed, for example, that 589 stores had 80

labor hours 100% of the time, and 290 more stores had 80 labor hours 90% of the

time. But Exhibit 1742C also showed that 163 stores had 80 labor hours less than

80% of the time in their stores (and of those, some were well below 50% and

several at 0%).

Family Dollar contends that the court should have used the average

percentage of all 1,424 store managers as a group. In other words, its argument is

66
In fact, Plaintiffs challenged Family Dollar’s exhibits in part on the grounds that Family
Dollar’s calculation of the total employee hours failed to account for whether the store managers
were physically present at the store at the same time as their subordinates. In other words, even
where store managers were absent, Family Dollar still counted all subordinate labor hours for the
purpose of their exhibits on the customary and regular supervision issue. The district court
rejected the Plaintiffs’ challenge.
Therefore, Family Dollar benefitted from every subordinate hour worked–without regard
to whether the store managers were physically present or on vacation, out sick, on leave, or just
not there.
67
Indeed, at Family Dollar’s request, the district court instructed the jury that
“[c]ontinuous physical presence is not an essential requirement for supervision.”

82
that, on average, store managers (as a group) had 80 labor hours in their stores

93% of the time. Family Dollar arrives at this conclusion by dividing the number

of weeks that Plaintiffs supervised two or more employees for 80 hours (61,481)

by the total number of weeks that Plaintiffs worked at Family Dollar (66,097).

The total percentage: 93%. While averaging the number of weeks that employees

meet the criteria may suffice in some collective cases, the court here enjoyed more

precise data that showed (1) the percentage for each of the 1,424 store managers

individually and (2) that 163 of the Plaintiffs failed to supervise two or more

employees 80% of the time. Family Dollar cites no authority, and presents us with

no principled basis, for determining that the court’s use of this more precise

evidence was reversible error.

The parties cite two other circuit court cases addressing this issue. In

Secretary of Labor v. Daylight Dairy Prods., Inc., the First Circuit concluded that

employees who do not direct work 76% of the time “fall[] short” of regular and

customary” supervision of 80 hours of work. 779 F.2d 784, 788 (1st Cir. 1985).

Although Daylight Dairy failed to decide what precise figure constitutes

customary and regular direction, it determined that 76% was insufficient. In the

Eighth Circuit’s Murray decision, the “store managers supervised at least two or

more employees who worked eighty hours per week 98.2% of the time.” 50 F.3d

83
567-68. The Eighth Circuit concluded: “That is ‘customarily and regularly’ by

any definition.” Id. Although the court expressed its disagreement with Daylight

Dairy, id. at 568, it similarly failed to define a minimum of threshold of precisely

what “customary and regular” means.

We likewise do not draw a bright-line rule but examine only whether Family

Dollar has shown reversible error in the court’s use of Family Dollar’s Exhibit

1742C as a basis for granting judgment in favor of the 163 Plaintiff store

managers. It has not.

V. REPRESENTATIVE TESTIMONY

Family Dollar’s challenge to the use of representative testimony proceeds

as follows: Seven Plaintiffs testified. There are 1,424 Plaintiffs. Therefore, the

verdict is based on only the representative testimony of less than 1% of the total

number of Plaintiffs. Family Dollar argues that this was simply too small a sample

size of testifying Plaintiffs, and therefore the jury verdict is unreliable and should

be set aside.

Family Dollar’s depiction of the trial is belied by the record. First, Plaintiffs

did not use representative testimony to prove its prima facie case. Instead,

Plaintiffs relied on Family Dollar’s thorough payroll records for each of the 1,424

Plaintiffs to show (1) when each employee worked, (2) how many actual hours

84
they worked, (3) how much they were paid, and (4) that they never received

overtime pay. Rather than contesting Plaintiffs’ prima facie case,68 Family Dollar

focused on its executive exemption defense at trial.

Second, Family Dollar’s claim, stripped of its hyperbole, is reduced to an

objection that not enough Plaintiffs testified to ensure a reliable verdict on whether

the executive exemption defense applied. But the jury’s verdict as to that defense

was not based on the testimony of just seven Plaintiffs. Instead, the parties

presented an abundance of trial evidence about the executive exemption issue,

including (1) a vast array of corporate manuals; (2) testimony from 39 witnesses

including Family Dollar executives, district managers who ran the operations of

134 stores, and store managers who worked at a total of 50 different stores; (3)

detailed charts summarizing wages and hours; and (4) a wealth of exhibits

including emails, internal Family Dollar correspondence, payroll budgets, and in-

store schematics. If one factors in that Broome and Barkus oversaw thousands of

stores, the witnesses go from representing hundreds of stores to thousands. In

addition to the large quantity of testimonial evidence, the non-testimonial evidence

68
To establish its prima facie case, Plaintiffs demonstrated that: (1) Family Dollar
employed them; (2) Family Dollar is an enterprise engaged in interstate commerce covered by the
FLSA; (3) each Plaintiff actually worked in excess of a 40-hour workweek; and (4) Family
Dollar did not pay any overtime wages to them. See 29 U.S.C. § 207(a).

85
was equally high in quality and largely comprised of Family Dollar’s corporate

records. The jury’s verdict is well-supported not simply by “representative

testimony,” but rather by a volume of good old-fashioned direct evidence.69

Family Dollar’s trial conduct is also revealing. It actually opposed the

introduction of more witness testimony from Plaintiff store managers. After

Family Dollar presented the deposition testimony of 12 opt-in store managers,

Plaintiffs attempted to introduce into evidence the deposition testimony of 238

more opt-in store managers. But Family Dollar objected,70 and the district court

69
It appears that the district court required the Plaintiffs, as part of their case-in-chief, to
put up their rebuttal to Family Dollar’s executive exemption defense before Family Dollar itself
called any witnesses. Even so, the Plaintiffs presented more evidence as to the executive
exemption in their case-in-chief than just the seven testifying Plaintiffs. And in any event,
Plaintiffs established their prima facie case, and the executive exemption is Family Dollar’s
affirmative defense–not a part of Plaintiffs’ case-in-chief. Thus, we view the evidence on the
executive exemption defense as a whole.
70
MR. ST. CLAIR [for Family Dollar]: We had our extracts, Your Honor. They offered
and testified the balance of those depositions. We’re now talking about something
completely different, depositions for which we haven’t offered anything into evidence.
MR. JOHNSON [for Plaintiffs]: That goes to balance.
MR. ST. CLAIR: If it was just a party, it would be like I take my own deposition and put
it in at trial. We can’t do that. I might also add --
MR. R. WIGGINS [for Plaintiffs]: They wanted to take 250 depositions, Your Honor, of
the collective group. You allowed them to take 250. They now have offered, I’m told,
twelve. And we’re offering the other, I guess, 238.
THE COURT: And you’re offering them for the truth of the matter asserted?
MR. R. WIGGINS: Yes, as sworn testimony under the rules. Yes.
MR. JOHNSON: Yes.
THE COURT: And you -- and you’ve not sought a stipulation as to what these witnesses
would say, if called?
MR. R. WIGGINS: During the earlier part of the case, Judge, we could not come to an
agreement about stipulations on that.

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sustained the objection.71 Family Dollar cannot validly complain about the

number of testifying plaintiffs when it successfully objected to Plaintiffs’ attempt

to present the testimony of almost 20 times as many Plaintiff store managers.

Although Family Dollar itself had the opportunity to present a great deal more

testimony from Plaintiff store managers, or its own district managers, it chose not

to. Indeed, Family Dollar used only 10 of its allotted 40 hours for its defense,

even though it bore the burden of proving the executive exemption defense.72

This leads us to a third flaw in Family Dollar’s argument. Plaintiffs did not

shoulder the burden of proof on the executive exemption defense. Family Dollar

did. See Atlanta Prof’l Firefighters Union, 920 F.2d at 804. Thus, Family Dollar

cannot rely on an insufficient number of witnesses being called by the Plaintiffs to

MR. ST. CLAIR: Your Honor, this is the first time that I’ve heard anything about them
offering depositions in this case from people who were not called as witnesses. This is the
very first time that issue has been raised, Your Honor.
MR. R. WIGGINS: It’s not true, and it’s mainly because he just entered the case recently,
Your Honor. These are on our exhibit list. These -- and there’s nothing surprising about
it. We’ve argued this before, it’s just not -- it’s no surprise to them. We’ve always said, if
you offer part of 250, we’re going to offer the other part.
MR. ST. CLAIR: And, Your Honor, I’m told, at the pretrial conference said they will not
be admitted into evidence. I wasn’t at the pretrial conference, but my partner was.
THE COURT: Well, Plaintiffs’ Exhibit 297 as offered by the plaintiff is not received in
evidence, but it will be a part of the record. Any other evidence from either party?
71
Although Plaintiffs’ offer of the deposition testimony was not received in evidence, the
court ruled that it would “be a part of the record.”
72
Family Dollar’s cross-examination of Plaintiffs’ witnesses did not count against its 40
hours unless its cross-examination time exceeded that of Plaintiffs’ direct-examination. There is
no indication in the briefs that Family Dollar’s cross-examination reduced any of its 40 hours.

87
meet Family Dollar’s burden of proof on its own affirmative defense.

Fourth, Family Dollar relies on two FLSA decisions involving

representative testimony, but they do not help Family Dollar. See Reich v. S. Md.

Hosp., Inc., 43 F.3d 949, 951-52 (4th Cir. 1995); Sec’y of Labor v. DeSisto, 929

F.2d 789, 792-96 (1st Cir. 1991). Since these cases are part of a line of circuit

cases dating back to Anderson v. Mount Clemens Pottery, 328 U.S. 680, 66 S. Ct.

1187 (1946),73 a few words about Mt. Clemens are in order first.

In Mt. Clemens, the Supreme Court authorized a burden-shifting scheme

designed to facilitate the ability of plaintiffs to prove an FLSA violation where the

employer failed to maintain proper records (such as how many hours its employees

worked and the amount of pay). Id. at 686-88, 66 S. Ct. at 1192. To prevent

workers from being penalized by the employer’s failure to keep adequate records,

the Supreme Court provided that plaintiffs could meet their burden of proof so

long as they “prove[] that [they have] in fact performed work for which [they

were] improperly compensated” and “produce[] sufficient evidence to show the

amount and extent of that work as a matter of just and reasonable inference.” Id.

at 687, 66 S. Ct. at 1192. Although Mt. Clemens never used the term

73
Congress abrogated a portion of the Mt. Clemens opinion not relevant here with the
passage of the Portal-to-Portal Act, Pub. L. No. 49-52, 61 Stat. 87 (1947). See 29 U.S.C. § 251;
United States v. Cook, 795 F.2d 987, 990-91 (2d Cir. 1986).

88
“representative testimony,” subsequent courts have interpreted it to authorize some

employees to testify about the number of hours they worked and how much they

were paid so that other non-testifying plaintiffs could show the same thing by

inference. See, e.g., Reich, 43 F.3d at 951 (“Under Mt. Clemens, the Secretary can

present testimony from representative employees as part of his proof of the prima

facie case.”); Donovan, 780 F.2d at 1116 (“There is no requirement that to

establish a Mt. Clemens pattern or practice, testimony must refer to all

nontestifying employees. Such a requirement would thwart the purposes of the

sort of representational testimony clearly contemplated by Mt. Clemens.”);

DeSisto, 929 F.2d at 792 (interpreting Mt. Clemens burden-shifting and noting

that the plaintiff “can rely on testimony and evidence from representative

employees to meet the initial burden of proof requirement”); McLaughlin v. Ho

Fat Seto, 850 F.2d 596, 589 (9th Cir. 1988) (“We hold that the Mt. Clemens

Pottery standard allows district courts to award back wages under the FLSA to

non-testifying employees based upon the fairly representative testimony of other

employees.”).

As a result, most of the circuit cases addressing how many FLSA plaintiffs

need to testify before their testimony can be considered representative of the group

involve an employer’s failure to keep adequate records and the plaintiffs’ use of

89
the Mt. Clemens burden-shifting scheme. See, e.g., McLaughlin, 850 F.2d at 589;

Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113, 1115-16 (4th Cir. 1985),

disapproved of on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S.

128, 108 S. Ct. 1677 (1988); Brennan v. Gen. Motors Acceptance Corp., 482 F.2d

825, 829 (5th Cir. 1973). Family Dollar relies on two of these kinds of cases to

support its argument that, statistically, not enough plaintiffs testified here. See

Reich, 43 F.3d at 951-52 (reversing district court because testimony from 58

employees was insufficient to represent 3,368 employees); DeSisto, 929 F.2d at

792-96 (reversing district court for allowing one employee to represent 244

employees at trial).

This line of cases does not help Family Dollar. Here, Family Dollar

adequately maintained its records. Indeed, Plaintiffs relied on those records

extensively. Therefore, the Mt. Clemens burden-shifting analysis does not apply.

Furthermore, the question in these burden-shifting cases is whether the plaintiffs

showed the amount and extent of the work performed as a matter of just and

reasonable inference. In such a context, it makes sense to examine whether there

is, statistically speaking, enough evidence to support the inference, and to shift the

burden of proof on an element of the plaintiffs’ case (the number of hours worked)

to the employer. See DeSisto, 929 F.2d at 794 (“The evidence was simply

90
inadequate to give rise to a ‘just and reasonable inference’ as to the amount and

extent of undercompensated work.”). Where employer payroll records are

inadequate, litigants can only approximate the number of hours worked and the

amount of pay due. In such cases, the answer requires a numerical estimate of

hours and pay.

In contrast, the Plaintiffs here relied on Family Dollar’s extensive payroll

records that broke down, week-by-week, how many hours each of the 1,424 store

managers worked. Reich and DeSisto are nothing like this case. Here, there was

no need for such numerical approximation.

If anything, the Mt. Clemens line of cases affirms the general rule that not

all employees have to testify to prove overtime violations. See DeSisto, 929 F.2d

at 793 (indicating that, generally speaking, employees who perform “substantially

similar work” may testify on behalf of their counterparts); Reich v. S. New

England Telecomms. Corp., 121 F.3d 58, 63 (2d Cir. 1997) (stating “there is no

bright line formulation that mandates reversal when the sample is below a

percentage threshold. It is axiomatic that the weight to be accorded evidence is a

function not of quantity but of quality.”); see also Brock v. Norman’s Country

Mkt., Inc., 835 F.2d 823, 828 (11th Cir. 1988) (“[I]t is clear that each employee

need not testify in order to make out a prima facie case of the number of hours

91
worked as a matter of ‘just and reasonable inference.’”) (quoting Donovan v. New

Floridian Hotel, Inc., 676 F.2d 468, 472 (11th Cir. 1982)).74

We reject Family Dollar’s argument that the executive exemption defense is

so individualized that the testifying Plaintiffs did not fairly represent the non-

testifying Plaintiffs. For the same reasons that the court did not err in determining

that the Plaintiffs were similarly situated enough to maintain a collective action, it

did not err in determining that the Plaintiffs were similarly situated enough to

testify as representatives of one another.

In any event, the only issue we must squarely decide is whether there was

legally sufficient evidence–representative, direct, circumstantial, in-person, by

deposition, or otherwise–to produce a reliable and just verdict. There was.

VI. WILLFULNESS AND LIQUIDATED DAMAGES

Family Dollar also appeals (1) the sufficiency of the evidence to support the

jury’s finding that Family Dollar willfully violated the FLSA, a decision that

extended the statute of limitations from two to three years, and (2) the court’s

reliance on the jury’s willfulness finding in determining that Family Dollar did not

74
Even in non-Mt. Clemens-type cases, courts have authorized representative testimony in
FLSA cases. See, e.g., Burger King I, 672 F.2d at 225 (authorizing district court to rely on
representative testimony in FLSA case to prevent cumulative testimony); Dole v. Snell, 875 F.2d
802 (10th Cir. 1989).

92
act in good faith, a decision that triggered the liquidated damages award.

A. Willful Violation

The statute of limitations for a claim seeking unpaid overtime wages under

the FLSA is generally two years. 29 U.S.C. § 255(a). But if the claim is one

“arising out of a willful violation,” the statute of limitations is extended to three

years. Id.

“To establish that the violation of the [FLSA] was willful in order to extend

the limitations period, the employee must prove by a preponderance of the

evidence that his employer either knew that its conduct was prohibited by the

statute or showed reckless disregard about whether it was.” Alvarez Perez, 515

F.3d at 1162-63 (citing McLaughlin, 486 U.S. at 133, 108 S. Ct. at 1681). Federal

regulations define “reckless disregard” as the “‘failure to make adequate inquiry

into whether conduct is in compliance with the [FLSA].’” Id. at 1163 (quoting 5

C.F.R. § 551.104).

Family Dollar raises several challenges to the jury’s willfulness finding. All

fail. First, the evidence, detailed above, was legally sufficient to support the jury’s

finding that Family Dollar’s FLSA violations were willful. For example, the

Plaintiffs presented testimony from Family Dollar executives that it never studied

whether the store managers were exempt executives. Executives also testified that

93
Family Dollar’s company-wide policy was that store managers were exempt from

FLSA overtime requirements, but they had no idea who made that policy. Further,

given the evidence at trial, the jury reasonably could have found that Family

Dollar executives knew that store managers spent most of their time performing

manual, not managerial, tasks, that corporate manuals micro-managed store

managers’ performance of those tasks, that the 380 district managers closely

supervised their store managers, and that store managers had little discretion or

freedom from supervision.

Second, we reject Family Dollar’s suggestion that the complex and fact-

intensive nature of the executive exemption inquiry means that, as a matter of law,

the FLSA violations were not willful. Such a rationale would effectively preclude

a willfulness finding in cases involving an executive exemption affirmative

defense. While the jury could have well considered that factor in its willfulness

determination, complexity alone does not preclude a willfulness finding.

Third, we reject Family Dollar’s argument that the court’s decision to grant

judgment as a matter of law for 163 Plaintiffs somehow biased the jury in its

willfulness determination. This speculation has no support in the record. One

could just as easily speculate in the other direction–the judgment for the 163

Plaintiffs meant the court thought the other 1,261 Plaintiffs failed to prove their

94
case. Furthermore, the record shows the court instructed the jury that it still had to

decide whether Family Dollar acted willfully and to determine damages for the

163 Plaintiffs. The court also instructed the jury to determine whether Family

Dollar met its burden of proof on the executive exemption for the remaining

Plaintiffs and, if so, to determine willfulness and damages.

Finally, Family Dollar has not shown the district court abused its

discretion75 in excluding various exhibits.76 Based on our review of the record, the

district court carefully considered whether to admit these exhibits and made

specific findings and rulings under Federal Rule of Evidence 403. During the first

trial in 2005, the district court found that the vast bulk of this evidence was

irrelevant. The district court also made a Rule 403 determination that even if there

was some probative value in the evidence (although it emphasized that there was

not), any such value was substantially outweighed by the other Rule 403

75
We review a district court’s rulings on the admissibility of evidence for abuse of
discretion and will reverse only if the moving party establishes a substantial prejudicial effect.
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008).
76
Family Dollar focuses mainly on these exhibits: (1) a district court decision (Exhibit
1955) and a magistrate judge decision (Exhibit 1954), both finding that a store manager was
exempt from the FLSA’s requirements; (2) correspondence to and from DOL Wage and Hour
investigators (Exhibits 2249 and 2336) and state investigators (Exhibits 2356, 2357, and 2249);
and (3) a report from two psychologists.

95
considerations.77 In the second trial, the district court relied on these factual

determinations and evidentiary rulings from the first trial.

Family Dollar’s brief cites and describes the relevant exhibits. However, it

fails to discuss Rule 403, to engage the court’s reason for excluding these exhibits,

or to explain why the court’s particular findings and rulings were an abuse of its

discretion. See Flanigan’s Enters., Inc. v. Fulton County, 242 F.3d 976, 987 n.16

(11th Cir. 2001) (stating that argument was waived because the appellants

“fail[ed] to elaborate or provide any citation of authority in support of” the

argument in their brief). Family Dollar simply asserts that the court “excluded

Family Dollar’s evidence from the jury.” In addition, Family Dollar fails to

respond to the Plaintiffs’ arguments that many of these exhibits were

unauthenticated, and that no evidence showed that Family Dollar’s decision-

makers ever saw, or relied on, any of the documents when deciding to exempt the

store managers. Viewing the record as a whole and bearing in mind the court’s

wide discretion in evidentiary rulings, Family Dollar has not carried its burden to

show that the court abused its discretion or that the jury’s willfulness

77
Federal Rule of Evidence 403 authorizes district courts to exclude evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.

96
determination was based on reversible error.

B. Good Faith and Liquidated Damages

When the jury finds an employer has violated the FLSA and assesses

compensatory damages, the district court generally must add an award of

liquidated damages in an equal amount. 29 U.S.C. § 216(b) (“Any employer who

violates the provisions of . . . section 207 of this title shall be liable to the

employee or employees affected in the amount of . . . their unpaid overtime

compensation . . . and in an additional equal amount as liquidated damages.”);

Alvarez Perez, 515 F.3d at 1163. However, the district court has discretion to

reduce or deny liquidated damages “‘if the employer shows to the satisfaction of

the court that the act or omission giving rise to such action was in good faith and

that he had reasonable grounds for believing that his act or omission was not a

violation of the [FLSA].’”78 Alvarez Perez, 515 F.3d at 1163 (quoting 29 U.S.C.

§ 260).

“[T]he judge and jury answer what is essentially the same question for two

different purposes. The willfulness or good faith question is answered first by the

jury to determine the period of limitations and then, if there is a verdict for the

78
“The employer bears the burden of establishing both the subjective and objective
components of that good faith defense against liquidated damages.” Alvarez Perez, 515 F.3d at
1163; Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1566-67 (11th Cir. 1991).

97
employee, again by the judge to determine whether to award liquidated damages.”

Id. at 1162.

Here, the district court determined that Family Dollar failed to meet its

burden of proving good faith on the liquidated damages issue because the jury

already had found willfulness on the statute of limitations issue. Family Dollar

argues that the district court erred because judges have the discretion to decide

good faith regardless of the jury’s willfulness finding.

While this was an open question in our circuit in 2006–the time of the

second trial–our subsequent decision in Alvarez Perez forecloses Family Dollar’s

argument. In Alvarez Perez, we concluded that “in an FLSA case a jury’s finding

in deciding the limitations period question that the employer acted willfully

precludes the court from finding that the employer acted in good faith when it

decides the liquidated damages question.”79 515 F.3d at 1166. Thus, under

Alvarez Perez, the district court did not err in concluding that the jury’s finding of

willfulness precluded a good faith finding. Id. at 1165-66. Accordingly, the

79
In Alvarez Perez, we explained this conclusion, in part, this way:
[W]hen a jury finds that a defendant’s violation is willful for statute of limitations
purposes, it has already factored the possibility of good faith into its examination. . . .
Not only would a district court impermissively be making a finding contrary to the
jury's findings, but . . . to find “good faith” after a finding of “willful” violation is
illogical; the two terms are now mutually exclusive.
Alvarez Perez, 515 F.3d at 1165 (quotation marks omitted).

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district court did not err in awarding Plaintiffs $17,788,029.32 in liquidated

damages, representing an amount equal to the back pay award.80

VII. JURY INSTRUCTIONS

Family Dollar’s last claim involves the district court’s jury instructions. We

start with our standard of review. Although “[w]e review jury instructions de novo

to determine whether they misstate the law or mislead the jury to the prejudice of

the party who objects to them,” United States v. Campa, 529 F.3d 980, 992 (11th

Cir. 2008) (citing United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997)),

the standard is “deferential,” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543

(11th Cir. 1996). As long as the instructions accurately reflect the law, the district

court is afforded “wide discretion as to the style and wording employed in the

instructions.” Bateman, 79 F.3d at 1543 (quotation marks omitted); Campa, 529

F.3d at 992; Bogle v. McClure, 332 F.3d 1347, 1356 (11th Cir. 2003).

Our practice is not to nitpick the instructions for minor defects. “[I]f the

jury charge as a whole correctly instructs the jury, even if it is technically

imperfect, no reversible error has been committed.” Bateman, 79 F.3d at 1543.

80
This Court recognized in Alvarez Perez that, in light of its holding, “evidence that an
employer acted without willfulness and in good faith makes a difference at this stage only if that
evidence compels judgment as a matter of law for the employer.” Id. at 1167. Based on the
Plaintiffs’ evidence discussed above in the analysis of the jury’s willfulness finding, we cannot
say that Family Dollar’s evidence compelled judgment as a matter of the law in its favor on
willfulness and, in turn, on good faith.

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“[W]e examine the challenged instructions as part of the entire charge, in view of

the allegations of the complaint, the evidence presented, and the arguments of

counsel, to determine whether the jury was misled and whether the jury

understood the issues.” Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1413

(11th Cir. 1986) (citation and quotation marks omitted). “When the instructions,

taken together, properly express the law applicable to the case, there is no error

even though an isolated clause may be inaccurate, ambiguous, incomplete or

otherwise subject to criticism.” Somer v. Johnson, 704 F.2d 1473, 1477-78 (11th

Cir. 1983) (quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir. 1982));

Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1050 (11th Cir. 1989).

We reverse where we are “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” Somer, 704 F.2d at

1478 (quoting Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th

Cir. 1981)); Johnson, 671 F.2d at 1280.

After review of the jury charge as a whole and counsels’ entire closing

arguments, we are convinced that the jury properly understood the issues and

applicable law. Family Dollar has shown no reversible error in the charge.

First, Family Dollar challenges the district court’s jury instruction on

willfulness. However, the district court used the Eleventh Circuit Pattern Jury

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Instruction 1.7.1 that in order to prove willfulness, Plaintiffs must establish that

Family Dollar knew, or showed reckless disregard for, the fact that its conduct was

forbidden by the FLSA. The charge is consistent with our case law outlined

earlier. See Alvarez Perez, 515 F.3d at 1162-63. The district court’s decision not

to elaborate further was within its discretion.

Second, Family Dollar challenges a part of the executive exemption charge.

Family Dollar cannot and does not quarrel with the vast majority of the charge.

That is because the court issued lengthy and comprehensive instructions on the

executive exemption issue that fully captured the applicable regulations and

factors. For example, the court instructed the jury that Family Dollar had to prove

that: Plaintiffs made over $250 a week, their primary duties were management,

and they customarily and regularly directed the work of two or more employees or

their equivalent. With respect to the primary duty element, the court stated that

primary duty means the main, major, or most important duty performed by the

employee, and that in determining whether an employee’s duties are his or her

primary duty, the jury should consider all of the facts surrounding the

employment.

The court also instructed that the “rule of thumb” is that primary duty means

that the major part, or more than 50 percent of the employee’s time, was spent in

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performing executive duties. But it clarified that time alone is not the only factor

in determining whether the employee’s duties were primarily managerial and that

an employee’s primary duty may be executive even if the employee spends less

than half of his or her time in such work.

In addition, the court told the jury to consider these primary duty factors: (1)

the relative importance of executive duties compared with non-executive duties,

(2) the frequency with which the store managers exercised discretionary powers,

(3) their relative freedom from supervision, and (4) the relationship between store

managers’ salaries and wages paid to other employees for nonexempt work.81

Importantly for this case, the court also issued a concurrent duties

instruction stating: “An executive employee may sometimes perform non-exempt

or non-managerial duties concurrent with his executive duties, so long as the non-

exempt duties are not his primary duties.”82 Family Dollar requested this charge.

In its closing argument, Family Dollar then used the concurrent duties charge to

stress that store managers who performed nonexempt tasks (stocking shelves,

81
See 29 C.F.R. § 541.700(a) (2006); 29 C.F.R. § 541.103 (2003).
82
The court also defined exempt and nonexempt work, and emphasized that continuous
physical presence at a store is not an essential requirement for determining whether an employee
supervised two or more employees. The court instructed that “job title alone” is not enough to
determine whether an employee is exempt, but rather that the jury must examine “the employee’s
salary and actual job duties.” The court also instructed that work that is directly and closely
related to executive work is considered executive work, even if it includes routine menial tasks.

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cleaning the store, etc.) alongside their subordinates do not lose their exempt

status since the store managers’ primary duty was to manage the store.

Family Dollar’s principal complaint on appeal is that the court should not

have added this part: “A working or supervising foreman works alongside his or

her subordinates performing the same kind of work as the subordinates, and

carrying out supervisory functions” and “are not executives within the meaning of

the law.”

Family Dollar correctly points out that there is a regulation entitled

“working foremen,” see 29 C.F.R. § 541.115 (2003), and that its stated purpose is

to clarify one aspect of the long test.83 But Family Dollar argues that this means

the court’s working or supervising foreman instruction does not apply in a short

test case. And, therefore, the court should not have used the instruction at all. See

Hays v. Pauls Valley, 74 F.3d 1002, 1008 (10th Cir. 1996) (noting that the

“working foreman” provision “does not apply to the short test”). But see Shockley

v. City of Newport News, 997 F.2d 18, 26 (4th Cir. 1993) (noting that even when

the short test applies, “[t]he ‘working foreman’ concept is useful because it helps

to distinguish between a manager of a recognized subdivision and a mere

supervisor of subordinate employees”). Plaintiffs respond that the short test–long

83
See supra note 47.

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test distinction was abolished in 2004, and that the concurrent duties regulation

references a “working supervisor.” See 29 C.F.R. § 541.106(c) (2006)

(contrasting role of working supervisor to exempt executive). Further, Plaintiffs

argue that even if the working foreman regulation does not technically apply, the

working or supervising foreman concept still provides a helpful example of how to

apply the exemption defense. Plaintiffs point out that even we have referenced the

concept of a working foreman to express ideas embodied in the short test. See

Brock, 835 F.2d at 826.

Although the parties hotly dispute whether the working foreman regulation

applies, there is no need to resolve that thorny question in order to determine

whether this particular jury charge was error here. In order for Family Dollar to

prevail, it must do more than show that the working or supervising foreman charge

was technically inapplicable. It must demonstrate that the charge, combined with

all of the other instructions on the executive exemption issue, undermined the

jury’s ability to correctly understand the applicable law and resolve the executive

exemption issue. In the vernacular of our precedents, it must either mislead the

jury or leave us with a “substantial and ineradicable doubt” as to whether the court

properly instructed the jury.

Family Dollar has not made this showing. Family Dollar overstates the

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significance of the working or supervising foreman charge. The charge relates to

only a narrow slice of the executive exemption issue–how to deal with supervisors

who work alongside of, and do the same work as, other employees. At root, it is

designed to illustrate that an employee who performs the same nonexempt, manual

tasks as his co-workers is not an executive even though he is technically a

supervisor. Even assuming that concept is inapplicable here–a proposition that we

by no means concede–the concurrent duties instruction cures any potential

confusion from the working or supervising foreman charge. The concurrent duties

instruction makes clear that one can still be an exempt executive even though he

performs a plethora of nonexempt duties at the same time as exempt duties.

Indeed, the court also accurately told the jury that a store manager may be exempt

even though he spends more of his time on nonexempt duties provided that his

primary duty is management.

After reviewing the charge as a whole and the closing arguments, we are

convinced that the jury was fully and accurately advised that an exempt executive

may do exempt and nonexempt work concurrently so long as his primary duty is

managerial. Although it may have been better for the court to have avoided using

the working foreman charge, Family Dollar has shown no reversible error here.

VIII. CONCLUSION

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For all of the above reasons, we affirm the district court’s judgments.

AFFIRMED.

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