APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 11-728 Honorable Dorothy McCarter, Presiding Judge
The opinion of the court was delivered by: Justice Jim Rice
Submitted on Briefs: October 10, 2012
Decided: January 29, 2013
Justice Jim Rice delivered the Opinion of the Court.
¶1 Robert Thompson (Thompson) appeals from the Order entered by the First Judicial District Court affirming the Department of Labor & Industry's (Department) denial of his claim for overtime compensation against J.C. Billion, Inc. (Billion). We affirm and address these issues:
¶2 1. Did the District Court err by concluding that Billion did not waive its argument that Thompson was exempt from overtime pay as a "salesman" under 29 U.S.C. § 213(b)(10)?
¶3 2. Did the District Court err by concluding that Thompson was not entitled to overtime pay under the Fair Labor Standards Act and the Montana Wage Protection Act?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 From March 1, 2009, until July 31, 2010, Thompson worked as the manager of Billion's "Pit Stop." The Pit Stop was the automotive services and repair facility within Billion's automotive dealership operation. During his tenure as manager of the Pit Stop, Thompson worked 819.21 hours in excess of the standard 40-hour work week, but did not receive overtime pay under his employment contract.
¶5 Thompson's duties as manager of the Pit Stop required that he greet customers; inspect vehicles, tires, and alignment; write up work tickets; "up sell" products; show customers to the waiting room; review a "report card" on the vehicle with the customer and provide an estimate for additional work that may need to be done; check the car and deliver it to the waiting customer; and collect payment from the customer. Thompson also oversaw the quality of work performed by the "lube techs" who worked on customer vehicles. Although titled a "manager," Thompson did not have the independent authority to hire, discipline or promote workers.
¶6 Thompson was paid a base salary of $800 per month plus commission. If his combined salary and commission did not exceed $2,400.00 per month, he would receive a guaranteed salary of $2,400.00. Thompson also received an annual bonus and $1 for every "report card" issued. His bonus for 2009 was $2,000.00.
¶7 Thompson resigned his employment on July 31, 2010. He filed a claim for overtime pay with the Department several months later, asserting that Billion owed him $17,014.99 in overtime wages. Billion responded that Thompson was not entitled to overtime because he was (1) a "managerial" or executive employee and (2) a "salesperson" of automobiles services, two positions that are exempt under overtime compensation laws. Thompson countered that he was not a manager because he did not direct the work of the other employees, and was not a "salesperson" because, in his view, the majority of his workday was spent performing "lube, oil, and filter tasks" rather than selling ...