FLSA2018-4 — Commercial construction project superintendents and section 13(a)(1)

U.S. Department of Labor Wage and Hour Division
Washington, D.C. 20210

FLSA2018-4
January 5, 2018
Dear Name*:
This letter responds to your request that the Wage and Hour Division (“WHD”) reissue Opinion
Letter FLSA2009-1NA. On January 15, 2009, the then-Team Leader of the Fair Labor
Standards Team, Monty Navarro, signed the opinion letter as an official statement of WHD
policy. On March 2, 2009, however, WHD withdrew the opinion letter “for further
consideration” and stated that it would “provide a further response in the near future.”
We have further analyzed Opinion Letter FLSA2009-1NA. From today forward, this letter,
which is designated FLSA2018-4 and reproduces below the verbatim text of Opinion Letter
FLSA2009-1NA, is an official statement of WHD policy and an official ruling for purposes of
the Portal-to-Portal Act, 29 U.S.C. § 259.

I thank you for your inquiry.

Bryan L. Jarrett
Acting Administrator

Dear Name*:
This is in response to your request for an opinion regarding whether project superintendents
(PSs) employed by your client, a commercial construction company, qualify for exemption under
section 13(a)(1) of the Fair Labor Standards Act (FLSA) as persons employed in a bona fide
executive, administrative, or learned professional capacity.
1
It is our opinion that your client’s
PSs do not qualify as exempt executive or professional employees but do qualify as exempt
administrative employees.
Your client provides general contracting, designing/building, and construction management
services to its customers. You state that while your client’s PSs are not required to have

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at www.wagehour.dol.gov.

bachelor’s degrees “[n]onetheless ... the duties of a project superintendent require advanced,
specialized knowledge because a project superintendent is responsible for overseeing a
construction project from start to finish, which includes complete familiarity with the plans and
specifications for a project, being responsible for securing or hiring subcontractors ...
involvement in change orders, overseeing the work of subcontractors, compliance with safety
regulations, inspection and permitting process and all aspects of commercial construction.” In
addition, you state that the PSs’ various duties include reviewing plans, specifications,
construction cost data, and other contract documents to identify errors, omissions, code
violations, and design problems; ensuring proper grades are followed and the structure location is
accurate; hiring and overseeing subcontractors; involvement in change orders; ensuring the
company and subcontractors follow safety regulations; consulting and assisting architects,
engineers, owners, and state and federal agencies in interpreting and enforcing fire safety rules
and regulations as applicable in the building’s design, construction, and operation; verifying that
necessary inspections, approvals, and certifications by appropriate agencies are completed;
maintaining quality control; ensuring the work is on schedule; reviewing and approving
contractor pay requests; and researching and advising on changes in methods and materials for
use in future construction projects. You also state that the PSs work independently.
Section 13(a)(1) of the FLSA provides a complete minimum wage and overtime pay exemption
for “any employee employed in a bona fide executive, administrative, or professional capacity,”
as those terms are defined in 29 C.F.R. Part 541. An employee may qualify for exemption if all
of the pertinent tests relating to duties and salary are met. You state that PSs receive annual
salaries of $60,000 to $75,000. For purposes of this response, we will assume the PSs meet the
salary basis test in 29 C.F.R. § 541.602.
Under the relevant duties test, an “employee employed in a bona fide executive capacity” means
any employee whose primary duty is management of the enterprise in which the employee is
employed or of a customarily recognized department or subdivision thereof; who customarily
and regularly directs the work of two or more other employees; and who has the 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. See 29 C.F.R. § 541.100(a). In an earlier opinion letter, we opined that a project
superintendent who supervised two or more employees during a construction project and made
recommendations to the project manager on employee advancement, firing and change of status
qualified for the executive exemption. See Wage and Hour Opinion Letter FLSA2007-3 (Jan.
25, 2007). Based on the information provided, however, we are unable to conclude that the PSs
employed by your client qualify for the executive exemption because it is unclear whether they
customarily and regularly direct the work of two or more employees, or have hiring and firing
authority concerning employees.
An employee qualifies as an “employee employed in a bona fide professional capacity” under the
relevant duties test if his or her “primary duty is the performance of work ... [r]equiring
knowledge of an advanced type in a field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction.” See 29 C.F.R. § 541.300(a)(2)(i). The
professional exemption is restricted to those professions that require specialized academic
training as a standard entrance prerequisite, and the best prima facie evidence that an employee
meets this requirement is possession of the appropriate academic degree. See 29 C.F.R. §

541.301(d). Notably, the learned professional exemption “does not apply to occupations in
which most employees have acquired their skill by experience rather than by advanced
specialized intellectual instruction.” See id. Your letter indicates that the PSs employed by your
client do not need to have a bachelor degree; accordingly, we conclude that they do not qualify
for the learned professional exemption.
Under 29 C.F.R. § 541.200(a) an employee qualifies as an “employee employed in a bona fide
administrative capacity” under the duties test if his or her “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 “includes the exercise of discretion and
independent judgment with respect to matters of significance.” The term ‘primary duty’ means
the principal, main, major, or most important duty that the employee performs. See 29 C.F.R. §
541.700(a). To qualify for the administrative exemption, “an employee must perform work
directly related to assisting with the running of servicing of the business, as distinguished, for
example, from working on a manufacturing production line or selling a product in a retail or
service establishment.” 29 C.F.R. § 541.201(a). Work directly related to the management or
general business operations includes “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.” 29 C.F.R. § 541.201(b).
The “exercise of discretion and independent judgment involves the comparison and the
evaluation of possible courses of conduct, and acting or making a decision after the various
possibilities have been considered. The term ‘matter of significance’ refers to the level of
importance or consequence of the work performed.” 29 C.F.R. § 541.202(a).
Recent decisions in the federal courts demonstrate that the application of these requirements is
highly fact-specific. See Gottlieb v. Construction Servs. & Consultants, Inc., No. 05-14139,
2006 WL 5503644, at *6-7 (S.D. Fla. July 24, 2006) (project superintendents whose primary
duty “involved producing the product their company existed to market” rather than servicing the
company itself, and where “all ‘matters of significance’ were determined by [the project
supervisor’s] superiors” were not exempt administrators); Carpenter v. R.M. Shoemaker Co., No.
00-5644, 2002 WL 987990, at *5 (E.D. Pa. May 6, 2002) (issue of fact whether project
superintendents’ work directly related to management policies or to general business operations
where a PS managed the day-to-day construction aspects of a particular project and “could be
construed as participating on the production side, as opposed to the administrative side of [the]
business”). In Gottlieb, the PS did not qualify for the administrative exemption because, in part,
his duties were primarily to inspect the work of subcontractors to ensure compliance with the
builder’s plans and to schedule the subcontractors and supplies to ensure they were both in place
at the proper time. See 2006 WL 5503644, at *6; 29 C.F.R. § 541.203(g) (“[o]rdinary inspection
work generally does not meet the duties requirements for the administrative exemption”); 29
C.F.R. § 541.202(e) (“the exercise of discretion and independent judgment must be more than
the use of skill in applying well-established techniques, procedures, or specific standards
described in manuals or other sources”). The fact that the PS’s work was important to the
company, affecting its profitability and reputation, was not dispositive. See Gottlieb, 2006 WL
5503644, at *6 (citing Sack v. Miami Helicopter Svc., Inc., 986 F. Supp. 1456, 1469 (S.D. Fla.
1997); 29 C.F.R. § 541.202(f).

Based on the information provided, we conclude that the PSs that you describe qualify as exempt
administrative employees because their primary duty appears to relate directly to the
management or general business operation of your client, i.e., they are responsible for overseeing
a commercial construction project from start to finish. See 29 C.F.R. § 541.201(a) – (c). These
PSs have “functional rather than departmental authority” and help to administer your client’s
“business operations.” See 69 Fed. Reg. 22,141 (April 23, 2004); see also Kennedy v.
Commonwealth Edison Co., 410 F.3d 365, 372-74 (7th Cir. 2005) (power plant’s work planners,
lead work planners, and supply analysts, among other employees, had primary duties that
directly related to management policies or general business operations). Additionally, your
client’s PSs appear to exercise discretion and independent judgment with respect to matters of
significance, such as in their responsibility for securing or hiring subcontractors, their
involvement in change orders, and their overseeing the work of subcontractors. The exercise of
discretion and independent judgment implies that, in these areas or others, the PSs make
independent choices concerning matters of significance, such as whether to depart from
prescribed standards or permitted tolerances. See 29 C.F.R. § 541.202(a) - (c).
This opinion is based exclusively on the facts and circumstances described in your request and 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.
Sincerely,

Monty Navarro
Fair Labor Standards Team
Office of Enforcement Policy
*Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. §
552(b)(7).