Customarily And Regularly

For purposes of the executive employee exemption under the Fair Labor Standards Act (FLSA),”customarily and regularly” means supervisors direct the work of two or more full-time employees or their equivalent on a normal and reoccurring basis as opposed to an isolate or intermittent basis. 29 CFR 541.701

The regulations do not provide any further guidance regarding what “customarily and regularly” means in actual practice. Court decisions provide some guidance:

The 1st Circuit Court of Appeals found that store managers that directed the work of two or more full-time employees or their equivalent only 76% percent of their time did not meet the customarily and regularly requirement. Secretary of Labor v. Daylight Dairy Products, 779 F.2d 784 (1st Cir. 1985).
The 8th Circuit Court of Appeals found that store managers that directed the work of two or more full-time employees or their equivalent 98.2 percent of the their time met the customarily and regularly requirement. Murray v. Stuckey’s, 939 F.2d 614 (8th Cir. 1991).
The 11th Circuit Court of Appeals found that store managers that directed the work of two or more full-time employees or their equivalent less than 80% of their time did not meet the customarily and regularly requirement. Morgan v. Family Dollar Stores, 551 F.3d 1233 (11th Cir. 2008).
The 11th Circuit Court of Appeals found that an assistant manager that directed the work of two or more full-time employees or their equivalent 86% of his time met the customarily and regularly requirement. Diaz v. Team Oney, per curiam (11th Cir. 2008).

To determine the amount of time an employee directed the work of two or more full-time employees or their equivalent, the courts typically analyzed payroll records from an extended period of time to determine the percentage of the workweeks the employees in question met the 80-hour rule.

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