January 14, 2009
This is in response to your request for an opinion regarding the application
of the section 13(a)(1) exemption of the Fair Labor Standards Act (FLSA) to a convention and visitors services sales manager
employed by a city agency. We believe the employee qualifies as an exempt
According to your letter and the description of job duties you enclosed,
this employee’s primary duty is marketing and promotional work to enhance
the city as a destination for conventions and visitors. This work is intended
to bring in meetings and conferences to the city’s convention center and generate
additional hotel occupancy in the city. The employee works closely with the
local hospitality industries, hotels, and other city departments to coordinate
conventions and ensure efficient meeting arrangements for the attendees; conducts
research to identify potential clients; prepares and presents bids for meetings
and conferences; designs promotional brochures and flyers; attends conferences
of professional meeting planners and exhibit show associations to generate
leads; handles computerized database bookings; and prepares bills for payment.
The employee also performs some clerical and support services for the convention
and visitors services director as needed. The position description indicates
that a high school diploma is required and a bachelor’s degree in public relations,
business administration, marketing, hospitality, or a related field is preferred.
Work experience may be substituted for a bachelor’s degree.
Your letter did not indicate the compensation paid to this employee. The
special salary basis requirements for public agency employees are contained
C.F.R. § 541.710. For purposes of this response, we will assume
that the employee is compensated on a salary basis at a rate of not less than
$455 per week.
The FLSA provides an exemption from the minimum wage and overtime requirements
for “any employee employed in a bona fide executive, administrative or professional
capacity . . . .” 29 U.S.C. § 213(a)(1); see also 29 C.F.R. Part
541. Your letter asked whether the convention and visitors services sales
manager is an exempt employee through a combination of the professional and
The term “employee employed in a bona fide administrative capacity” in section
13(a)(1) of the FLSA means any employee:
Compensated on a salary or fee basis at a rate of not
less than $455 per week . . . exclusive of board, lodging or other facilities;
Whose primary duty is the performance of office or non-manual
work directly related to the management or general business operations
of the employer or the employer's customers; and
Whose primary duty includes the exercise of discretion
and independent judgment with respect to matters of significance.
C.F.R. § 541.200(a)(1)-(3).
To meet the requirements of the administrative exemption, the employee’s
primary duty must be “directly related to . . . management or general business
operations.” 29 C.F.R. § 541.200(a). The employee must perform work
directly related to “assisting with the running or servicing of the business,”
as distinguished, for example, from producing or selling a product. Id
. Work that is directly related to management or general business operations
work in functional areas such as tax; finance;
accounting; budgeting; auditing; insurance; quality control; purchasing; procurement;
advertising; marketing; research; safety and health; personnel management;
human resources; employee benefits; labor relations; public relations; government
relations; computer network, internet and database administration; legal and
regulatory compliance; and similar activities.
C.F.R. § 541.201(b).
In this case, the employee’s primary duty is office or non-manual work directly
related to management or general business operations. This employee is engaged
in marketing activities that are intended to enhance the city’s image as a
potential meeting place and thus promote economic growth. See Wage
and Hour Opinion Letter
(Sept. 21, 2006) (city events coordinator with primary duty that included
marketing was “directly related to management or general business operations”).
The administrative exemption also requires that the employee’s primary duty
include the exercise of “discretion and independent judgment” with respect
to “matters of significance.” The exercise of discretion and independent
judgment involves the comparison and the evaluation of possible courses of
conduct and acting on or making a decision after the various possibilities
have been considered. The term “matters of significance” refers to the level
of importance or consequence of the work performed. See id. § 541.202(a).
The exercise of discretion and independent judgment requires more than using
skill in applying well-established techniques, procedures, or specific standards
described in manuals or other sources, and does not include clerical or secretarial
work, recording or tabulating data, or performing other mechanical, repetitive,
recurrent or routine work. See id. § 541.202(e).
According to the information provided, the employee operates under only minimal
supervision, researches and selects potential clients, designs and creates
promotional materials, and prepares and presents bids for meetings and conferences
to potential clients. The employee also determines what amenities the city
will offer to a group and the level of staffing the city will provide to assist
a group. These duties include the exercise of discretion and independent
judgment in matters of significant economic impact on the city. See Wage
and Hour Opinion Letter FLSA2006-34 (city events coordinator exercised discretion
and independent judgment because her duties included, in part, entering into
contracts, soliciting contributions, and designing advertising and marketing).
Although the employee is required to perform clerical and support duties for
the convention and visitors services director as needed, this nonexempt work
does not appear to be the employee’s primary duty.
Thus, we believe the employee qualifies for the administrative exemption.
Because we believe that the employee qualifies for the administrative exemption,
we do not address the professional exemption.
This opinion relates solely to the application of the FLSA and is based
exclusively on the facts and circumstances described in your request.
This opinion is given based on your representation, express or implied, that
you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein.
You have represented that this opinion is not sought by a party to pending private
litigation concerning the issues addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.
We trust that this letter is responsive to your inquiry.
Alexander J. Passantino
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).