The FLSA's Overtime Provisions

On July 5, 2017, the U.S. Court of Appeals for the Ninth Circuit issued a decision in McKeen-Chaplin v. Provident Bank, turning the traditional administrative vs. production dichotomy of the administrative exemption on its head. In Provident Bank, the Ninth Circuit held that the bank's mortgage underwriters are not exempt because their duties go to the heart of marketplace offerings rather than the administration of the bank's business. In our view, that decision wrongly interpreted the administrative vs. production dichotomy and parted ways with the Sixth Circuit's sound 2015 decision in Lutz v. Huntington Bank.

One additional point caught our eye: The prefatory language the Ninth Circuit used in Provident Bank in arriving at its conclusion that the administrative exemption did not apply. Indeed, the Ninth Circuit's holding could have been predicted at the very beginning of the court's analysis. There, before even interpreting the administrative exemption, the court cleared its throat with a series of pronouncements we see all too frequently in FLSA jurisprudence: “exemptions,” the pronouncement goes, “are to be construed narrowly,” and must be “withheld except as to persons plainly and unmistakably within their terms and spirit.” The Ninth Circuit hearkened back to this language later in its opinion as well.