RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0264p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J UDITH P ERRY ; E RIN L ANE ; A IMEE D OOLING , Plaintiffs-Appellants ,

v

.

R

ANDSTAD G ENERAL P ARTNER (US) LLC, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 16-1010

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:14-cv-11240—John Corbett O’Meara, District Judge. Argued: November 30, 2016
Decided and Filed: November 20, 2017
Before: MOORE, SUTTON, and WHITE, Circuit Judges.

_________________ COUNSEL

ARGUED: Jordan M. Lewis, KELLEY/UUSTAL, PLC, Fort Lauderdale, Florida, for Appellants. Jennifer A. Rile y, SEYFARTH SHAW LLP, Chicago, Illinois, for Appellee. ON BRIEF: Jordan M. Lewis, KELLEY/UUSTAL, PLC, Fo rt Lauderdale, Florid a, Barry S. Fagan, Jennifer L. McManus, FAGAN MCMANUS, P.C ., Royal Oak, Michigan, for Appellants. Jennifer A. Riley, Gerald L. Maatman, Jr., Ashley C. Workman, SEYFARTH SHAW LLP, Chicago, Illinois, for Appellee.
WHITE, J., delivered the opinion of th e court in which MOORE and SUTTON, JJ., joined in part. MOORE, J. (pp. 34–37), delive red a separate opinion c oncurring in part and dissenting from the court’s opin ion regarding matchmaking duties. SUTTON, J. (pp. 38–40), delivered a separate opinion concurring in part an d dissenting from the c ourt’s opinion regarding sales duties. 

### >No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 2

_________________ OPINION

_________________ HELENE N. WHITE, Circuit Judg e. In this putat ive collective action under the Fair Labor Standards Act (FLSA), Judith Perry, Erin Lane, and Aimee Dooling (Plaintiffs) appeal the district court’s grant of summary judgment to their employer, Randstad General Partner (US) LLC (Randstad), rejecting their argument that Randstad improperly classified them as exempt employees not entitled to overtime pay. We AFFIRM IN PART and REVERSE IN PART

.
I. BACKGROUND
Randstad is a staffing company; it recruits te mporary workers (talent) and hires them out to other companies (clients). Plaintiffs we re in-house Randstad empl oyees (not temporary workers hired out) in the company’s Troy, Michigan, office. Each Plaintiff held multiple positions over the course of her employment w ith Randstad, but Plaintiffs’ responsibilities generally included marketing and selling Randstad’ s services; recruiting and evaluating workers and placing them with clients; overseeing th ose placements; and various administrative and clerical tasks. Randstad tracked Plaintiffs’ pe rformance using a points-based system called the Work Planning Index (WPI). Each work activity earned a set number of points, e.g., two points for interviewing a recruit and on e point for completing referen ce checks. Plaintiffs were required to accrue 100 points each week. Of thos e 100 points, Plaintiffs were expected to earn a certain number in particular categories, such as sales and recruiting. Randstad maintained a progressive discipline system for employees w ho did not meet the 100-point quota each week, with penalties up to and including termination.
Randstad also held periodic “contests,” which required Plaintiffs to perform a particular task a specified number of times in a given week, e.g., make 40 telephone connections with potential new customers via cold calls. According to Plaintiffs, participation in these contests was mandatory for all employees in the Troy branch, regardless of job description or title, even if the “contest” task was not within an employee’s regular duties, thereby taking time away from meeting the category quotas. Further, while all employees accrued points for the contestNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 3

activities, their category quotas did not change s imply because a contest was taking place. Thus, if a contest required an employee to perform task s outside her regular duties, she might have to earn more than 100 points total in order to accru e enough points in each category to meet all her quotas.
According to Plaintiffs, the quotas set by Randstad and enforced through the WPI system were impossible to meet working only 40 hours pe r week. As a result, Plaintiffs regularly worked significantly more than 40 hours per week, and Randstad managers were aware they did

so.

II. PROCEDURAL HISTORY
Perry, Lane, Dooling, and a fourth plaintiff, Suhaima Choudhury, file d this suit in March 2014. The one-count complaint seeks unpaid overtime and liquidated damages under the FLSA, attorneys’ fees, costs, and a declaratory judg ment that Randstad’s practices are unlawful. Plaintiffs styled their complaint as a collect ive action, and sought to represent all similarlysituated staffing employees who worked for Randstad in the three years prior to the
commencement of the lawsuit.
Randstad answered the complaint in May 201 4, and the parties sp ent several months engaging in discovery. Subsequent ly, Plaintiffs filed a motion fo r conditional class certification, and Randstad filed a motion for summary judgmen t seeking the dismissal of all four named plaintiffs’ claims. After a jo int hearing on both motions, the district court granted summary judgment to Randstad on the claims broughtby Dooling, Lane, and Perry, but allowed Choudhury’s claims to proceed. Based on Plai ntiffs’ own testimony, the court found that Dooling, Lane, and Perry exerci sed discretion and independent judgment, and therefore were covered by the administrative exemption to the FLSA. 1 The court also found that Randstad was insulated from any liability be cause it relied, reasonably and ingood faith, on an opinion letter issued by the Department of Labor’s (DOL) Wage and Hour Division (WHD ). Finally, the court

1 Choudhury’s claim was different from the other plain tiffs’. Choudhury was actually classified as nonexempt, but alleged that Randstad ordered her not to record the overtime hours she actually worked.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 4

denied the certification motion on the merits as to Choudhury, and as moot as to the other
Plaintiffs.
Plaintiffs timely filed a Rule 60 motion fo r relief from the order granting summary judgment. Plaintiffs argued that certain WPI-related reports produced by Randstad after summary judgment was granted constituted new evidence sufficient to justify relief. Plaintiffs reasoned the reports showed Ra ndstad used the WPI to compar e and evaluate employees, and created a triable fact issue regarding how much discretion Plaint iffs had. The district court denied the motion, concluding that ranking empl oyees based on how many points they earn “is not inconsistent with those employees using in dependent judgment and discretion in how they complete their work.” (R

. 104, PID 2416.)
Finally, after Choudhury’s claims were resolved by the parties and voluntarily dismissed, the remaining parties stipulated to the entry of judgment. This appeal followed.

III. DISCUSSION

Plaintiffs contend the district court erre d both in finding Randstad eligible for the goodfaith-reliance defense and in finding the FL SA’s administrative exemption applicable. 2, 3

A. Standard of Review

We review the district court’s decision granting su mmary judgment de novo. Foster v.
Nationwide Mut. Ins. Co. , 710 F.3d 640, 643 (6th Cir. 2013) (citations omitted). “Summary judgment is appropriate if, exam ining the record and drawing all inferences in a light most favorable to the non-moving party, there is no ge nuine issue as to any material fact and the moving party is entitl ed to judgment as a matter of law.” Schaefer v. Ind. Mich. Power Co. , 358 F.3d 394, 399 (6th Cir. 2004).

2 Plaintiffs do not challenge the district court’s denial of their Rule 60 motion.
3 Below, Randstad also made argument s based on the statute of limitations and the executive, outside sales, and combination exemptions, and challenged Plaintiffs’ entitlement to liquidated damages. The district court did not address those issues, and neither party raises them on appeal.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 5

B. The Administrative Exemption
1. Applicable Law
The FLSA was enacted “to compensate thos e who labored in excess of the statutory
maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours becau se of the pressure of extra cost.” Bay Ridge Operating Co. v. Aaron , 334 U.S. 446, 460 (1948). “Consistent with this goal, the [FLSA] requires employers to pay their employees time-and- a-half for work performed in excess of forty hours per week, but exempts ‘bona fide executive , administrative, or professional’ employees from the overtime pay requirements.” Acs v. Detroit Edison Co. , 444 F.3d 763, 764–65 (6th Cir. 2006) (quoting 29 U.S.C. § 213(a)(1); other citations omitted) (brackets and other internal quotation marks removed). “Congress did not defi ne these exemptions, but delegated authority to the Department of Labor . . . to issue regulations to define and delimit these terms.” Foster , 710 F.3d at 642.
At all times relevant to this litigation, the operative regulat ion provided that an “employee employed in a bona fide admi nistrative capacity” is one who is:
(1) Compensated . . . at a rate of not less than $455 per week . . . ; (2) Whose primary duty is the performan ce of office or non-manual work directly related to the management or general business operati ons of the employer or the employer’s customers; and (3) Whose primary duty includes the exer cise of discretion and independent judgment with respect to matters of significance.
29 C.F.R. § 541.200(a); 4 Foster , 710 F.3d at 642. “The exemption is to be narrowly construed against the employer, and the employer bear s the burden of proving each element by a preponderance of the evidence.” Foster , 710 F.3d at 642 (citing Renfro v. Ind. Mich. Power Co. ,

4 The text of subsection (a)(1) was slated to change on December 1, 2016, to read: “Compensated . . . at a rate per week of not less than the 40th percentile of week ly earnings of full-time nonhourly workers in the lowestwage Census Region.” See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed. Reg. 32391, 32549 (May 23, 2016). The United States District Court for the Eastern District of Texas has enjoined th e DOL from implementing or en forcing that change, along with certain other proposed changes to Chapter 541. Nevada v. U.S Dep’t of Labor , 218 F. Supp. 3d 520 (E.D. Tex. 2016). Neither the proposed change to 29 C.F.R. § 541.200(a)(1) nor the injunction has any effect on this case.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 6

497 F.3d 573, 575–77 (6th Cir. 2007) ( Renfro II )); 5 see Auer v. Robbins , 519 U.S. 452, 462 (1997). Here, the parties agree th at the first two elements are me t. Further, Plaintiffs do not argue that their duties di d not involve “matters of significance .” Thus, the only issue is whether Plaintiffs’ “primary dut[ies] include[d] the exer cise of discretion and independent judgment.” 29 C.F.R. § 541.200(a)(3).
“In general, the exercise of discretion and independent j udgment involves the comparison and the evaluation of possible courses of conduc t, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(a). Whether a particular employee exercises discretion and independent judgment must be de termined “in the light of all the facts involved in the partic ular employment situation in which the question arises.” Id. § 541.202(b).
Additionally, “[t]he ex ercise of discretion and indepe ndent judgment implies that the employee has authority to make an independen t choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if
their decisions or recommendati ons are reviewed at a higher le vel.” 29 C.F.R. § 541.202(c). On the other hand, “[t]he exercise of discretion and i ndependent judgment must be more than the use of skill in applying well-estab lished techniques, procedures or specific standards described in
manuals or other sources.” Id. § 541.202(e) (citing id. § 541.704); Foster , 710 F.3d at 646.
Finally, Plaintiffs’ “primary duties” are what matter for purposes of the administrative exemption. 29 C.F.R. § 541.200(a)(3).
The term “primary duty” means the principal, main, major or most important duty that the employee performs. Determinat ion of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s j ob as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom

5 Some of our older opinions use the phrase “a preponderance of the clear and affirmative evidence.” See, e.g. , Renfro v. Ind. Mich. Power Co. , 370 F.3d 512, 515 (6th Cir. 2004) (Renfro I ) (emphasis added). We have since clarified that the use of that phrase was not intended to, and did not “heighten [a defendant]’s evidentiary burden when moving for summary judgment.” Renfro II , 497 F.3d at 576.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 7

from direct supervision; and the relati onship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Id. § 541.700(a). Further,
The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is th e primary duty of an employee. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing in this secti on requires that exempt employees spend more than 50 percent of their time pe rforming exempt work. Employees who do not spend more than 50 pe rcent of their time performing exempt duties may nonetheless meet the primary duty requirementif the other fact ors support such a conclusion.

Id. § 541.700(b).

2. Prior Precedent Related to Staffing Company Employees
We have not addressed the question whether staffing company employees such as Plaintiffs fall within the administrative exemption. Nor, as best we can tell, has any other federal Court of Appeals. Several district courts and the WHD have addresse d the question, however.
First, by regulation:
Human resources managers who formulate, interpret or implement employment policies . . . generally meet the duties requirements for the administrative exemption. However, pers onnel clerks who ‘screen’ applicants to obtain data regarding their minimum qua lifications and fitness for employment generally do not meet the duties requirements for the administrative exemption.
29 C.F.R. § 541.203(e).
Second, when applying the relevant regul atory provisions to staffing company employees, the WHD and the courts have consider ed the specific facts of each case and more often than not found that such employees ex ercise discretion and independent judgment.

In Andrade v. Aerotek, Inc. , the plaintiff’s job titles were, successively, “Recruiter,” “Recruiter II,” and “Account Recruiting Mana ger.” 700 F. Supp. 2d 738, 740–41 (D. Md. 2010). The key aspects of the plainti ff’s duties were: (i) “[s]he did not screen solely for minimumNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 8

qualifications, but often sent candidates to he r Account Managers w hose personalities made them a good fit, even when their qualifications were not as impressive as others;” (ii) she “negotiated overall pay, holiday pay and vaca tion pay;” (iii) she “managed the contract employees while on assignment, assessed and inve stigated contractor problems, and counseled and disciplined contractors;” (iv) she “was not subject to immediate direction or supervision;” and (v) she “was in charge of generating business” in certain areas from a particular client. Id. at 747–48. Citing those factors, and further reasoning th at “[t]he fact that she would consider a particular range when negotiating pay does not mean she did not exercise discretion,” the court found that the plaintiff exercised di scretion and indepe ndent judgment. Id. (citation omitted).

In Quintiliani v. Concentric Healthcare Solutions, LLC , the plaintiff was a “Staffing Coordinator.” 944 F. Supp. 2d 738, 741 (D. Ariz. 2013). Her duties included managing client relationships and “counseling and discipline of staff who did not comply with the client’s policies or procedures.” Id. at 746–47. She was also responsi ble for “implement[ing] important management policies and operating practices” and doing so “in a manner that would ensure that the medical professionals plac ed with the clients were ca pable of producing good medical
services.” Id. For that reason, the court found that the plaintiff “exerc ised discretion and independent judgment.” Id. at 747 (citation omitted); see also Gonzales v. Barrett Bus. Servs.,
Inc. , No. CV-05-0104-EFS, 2006 WL 1582380, at *21 (E .D. Wash. June 6, 2006) (using FLSA standards to interpret a parallel Washington st atute and concluding an employee who performed a range of recruitment, hiring, placement, and supervisory duties exercised discretion and independent judgment); accord Hudkins v. Maxim Healthcare Servs., Inc. , 39 F. Supp. 2d 1349, 1349 (M.D. Fla. 1998) (holding the administrati ve exemption applied to an employee who recruited and placed nurses, but without anal yzing discretion and independent judgment).

The WHD reached the same conclusion in its most recent relevant decision. In 2005, the WHD was asked whether “Staffing Managers” at a particular “temporary staffing agency” qualified for the administrative exemption. U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter, 2005 WL 3308616, at *1 (Oct. 25, 2005) (the 2005 WHD Letter). The Staffing Managers’ primary duties were to manage the function of providing temporary workers to the company’s clients. Id. This involved: (i) evaluating what skills were needed; (ii) negotiatingNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 9

the terms for the placement and the fee to be paid; (iii) recruiting and selecting workers, including evaluating recruits’ ed ucation, skills, and personalit y, not merely checking against minimal requirements; (iv) recommending workers to clients; (v) negotiati ng the wages paid to workers; (vi) supervising workers; and (vii) counseling and disciplini ng workers, including transfers and terminations, if necessary. Id. The Staffing Managers “w ork[ed] under very little supervision” and “ma[d]e decisions and accomplis h[ed] their tasks without prior approval and with broad range of discretion.” Id. They also decided whether a dvertising was necessary to fill a position, “determine[d] where to place the advert isement,” and “negotiate[d] the costs of such placement.” Id. at *2.
In analyzing these duties, WHD pointed to the contrast between human resource managers (covered by the exemption) and personne l clerks (not covered), and concluded that the Staffing Managers exercised the re quisite discretion and independent judgment to qualify for the administrative exemption because it was their j ob to: “recruit; interview; hire and recommend placement of employees to particular assignmen ts; manage the client’s temporary labor pool; provide advice on personnel issues ; handle complaints; resolv e grievances; and terminate employees on behalf of the client’s management.” Id. at *3 (citing 29 C.F.R. §§ 541.202(b), 541.203(e)); see also U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter, 1970 WL 26434, at *1 (Aug. 11, 1970) (“Senior Employment Consulta nt” placing salaried professional workers found to exercise requisite disc retion and independent judgment , where he was “responsible for making in depth interviews,” had “complete authority and sole responsibility” for deciding which applicants to refer to clients, served as “primary liaison” with certain clients, and was subject to less supervision than “o ther employment consultants”).
The only contrary case cited by Plaintiffs is Ogden v. CDI Corp. , No. CV08-2180 PHX DGC, 2010 WL 2662274 (D. Ariz. July 1, 2010). The plaintiff’s duties in Ogden were to: (i) search for qualified individua ls; (ii) determine whether a candidate’s background matched the client’s requirements based on both subjective a nd objective factors; and (iii) determine the candidate’s salary requirements. Id. at *3. The plaintiff would th en “provide the resumes of qualified candidates to his accoun t manager,” who would “decide whether to present those
candidates to the client.” Id. If the account manager did so, a nd the client was interested, theNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 10

plaintiff would schedule an interv iew between candidate and client. Id. And if the client wanted to hire the candidate, the plaintiff would call the candidate to make the offer. Id. However, there was no evidence that the plaintiff “hired or fire d candidates, made direct recommendations to clients, or managed and disciplined candidate s,” nor any evidence he had “formulated, interpreted or implemented employment policies.” Id. at *3, *5 (quoting 29 C.F.R. § 541.203(e)) (brackets removed). On th at basis, the court disti nguished the 2005 WHD Letter, Andrade , and other staffing-company cases, a nd found that the defendant had not shown the plaintiff was covered by the administrative exception as a matter of law. Id. at *3–*5.

3. Facts
As the preceding discussion makes clear, dete rmining what an employee’s primary duties are and whether they are covered by the administra tive exemption is a fact-intensive inquiry. “We focus on evidence regarding the actual day-to-day activities of the employee rather than more general job descriptions contained in resumes, position descriptions, and performance
evaluations.” Schaefer , 358 F.3d at 400 (citing Ale v. Tenn. Valley Auth. , 269 F.3d 680, 688 (6th Cir. 2001)). We therefore set out in detail th e record evidence rele vant to this issue.

a. Judith Perry
Perry was a Staffing Consultant from February 2012 to August 2013 and a Senior Staffing Consultant from August 2013 to December 2013. 6

i. Staffing Consultant Duties – February 2012 to August 2013
As a Staffing Consultant, Perry recruited for “temp, temp to perm, and permanent positions” in office and administrative roles, such as receptionist, filing clerk, payroll, administrative assistant, and cal l-center jobs. She testified:

6 Some documents in the record refer to Perry’s seco nd job as “Staffing Manager.” Since the parties both use the title “Senior Staffing Consultant” on appeal, we do as well.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 11

it’s sort of like your own business. You do everything from the beginning to the end. So you bring in the new business, you handle existing business, you help find the employees, you get them signed up and registered a nd on the payroll of Randstad. And then you let them go or you -- whatever. It’s the whole gamut.
(R. 55-2, PID 605.)
Perry was required to earn an average of 100 points per week for completing various jobrelated activities, e.g., making calls, opening a ne w account, making a placement. Perry was also required to earn a certain number of points in particular categories, such as sales or recruiting. As long as she met those targets, she could choos e which tasks to perform on any given day. As she put it:
[T]here was a choice of how you got your poi nts, but you had to make sure that you had so many points in new business de velopment, so many points in existing, in candidates, you know, in the recruiting. It was -- it was cafeteria style, but you had to -- it was tight. I mean, you still had to get in certain categories.
(R. 67-6, PID 1518.)
From Perry’s perspective, her most importantduty as a Staffing C onsultant was “selling Randstad services.” ( Id. at 1520.) To do so, Perry woul d attend networking events, contact existing clients, cold call prospective client s, and knock on doors. She sent out marketing materials to clients pursuant to Randstad polic ies. She chose for herself which networking
events to attend. When it was time for a doo r-knocking “blitz,” however, branch management would select an area and assign streets to each team member. For existing clients, Randstad prescribed a schedule for when to reach out to them about potential vacancies; Perry was expected to call each client with in a day or two of the date se t by Randstad. The process was the same for prospective clients, except that Perry was also expected to use her own network and initiative to add new prospects, and she assi sted or mentored other employees in these “prospecting” activities. New prospects had to fit certain criteria set by Randstad, but Perry decided which prospects to add a nd whether to classify them as serious or secondary prospects.
Once a client agreed to have Randstad fill a vacancy, Perry was responsible for getting the client to sign a written agreement. She th en interviewed and pres ented candidates to the client. This involved completing paperwork and sometimes arrangi ng for drug tests. The clientNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 12

then interviewed the recommended candidate(s), and once the client made a selection, Perry
would hire the candidate.
Randstad used template contracts with its clients. The default goal was for Randstad to receive 160% of what it would pay the candidate (a 60% “mark-up”). If a client declined to pay the 60% mark-up, Perry could negotiate downto 58%, but only with permission from management. Perry was encouraged to negotiate for a mark-up above 60%.
As to recruiting, Perry’s responsibilities in cluded “[f]inding talent, interviewing talent, [and] hiring talent.” ( Id. at 1531.) She attended job fairs, posted on and searched social media
and various careers-focused web si tes, wrote job descriptions, a nd conducted interviews. Some of this outreach was dictated by Randstad, while some was up to Perry, su ch as talking to her own contacts. When writing a job description, Pe rry used Randstad’s resources to compile a list of the skills necessary for a particular job. Randstad’s procedures were very rigid, and it was Perry’s responsibility to translate the information about th e job provided by the client into Randstad’s required format.
When recruiting candidates, Perry was require d to first post each position to Randstad’s system, which broadcast it out to various external sources. If that did not produce sufficient qualified candidates, Perry would manually search social media and career-focused web sites; it was up to her to decide which resources to us e. Separately, Perry would sometimes actively recruit candidates with certain high-demand sk ills and then look for a client to place the
candidate with.
Once Perry identified a potential candida te for an open position, she would conduct a phone screening. Phone screenings generally fo llowed a script provided by Randstad, but Perry could deviate to some extent based on the job in question. The purpose of the phone screenings was both to confirm the candidate had the objectiv e qualifications necessary for the job and to determine if the candidate displayed proper phone etiquette. Perry made the decision whether a
candidate should receive anin-person interview.
In-person interviews followed an outline provided by Randstad. There were predetermined questions to ask based on the skills needed for the job in question, to which PerryNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 13

could add, but not subtract. Perry also determin ed which skills tests to give a candidate, again based on the client’s needs and Randstad’s large set of available tests. After an interview, it was Perry’s decision whether a candi date met Randstad’s requirements. Perry had discretion in evaluating subjective criteria like communications skills and whether a candidate made appropriate eye contact.
As to placements, “Randstad was big on boss, company and culture fit.” (Id. at 1537.) In addition to the information gained during the phone screening and interview process, Perry
considered a candidate’s work hi story, such as whether the candida te had previously worked in the client’s industry or for co mpanies of a similar size.
After a placement was made, Perry was respon sible for “keeping the relationship going.” ( Id. at 1531.) For example, Perry “ma[de] sure the candidate was okay and happy and liking what they were doing,” “ma[de] sure that they st ayed at the positions they were in,” and, “[i]f they called in sick, we had to field those calls and then alert the client that the candidate wasn’t going to be there, but make sure that we had a back -up for them if they needed a back-up talent.” ( Id. ) Randstad set a fixed schedule to follow in checking on new placements. If a placement was not working out, Perry would address it:
We would coach them, find out what the pr oblems were, what the issues were, if the client -- first of all, we would have to find out from th e client if they wanted to keep the candidate. The talent. If they wanted us to replace them, we would have to replace them. We would have to wait until the talent went home, and then call them after they got home to let them know they weren’t going back the next day.
( Id. at 1538.) Perry further explained:
I would usually call the candidate, find out how it was going, how the job was going, did they find -- were there any challe nges that they were having. And then I would get -- give them fee dback and let them know this is what you need to do to step it up, or this is what you need to do to improve, this is what you need to do to -- you know, to keep your position.
( Id. )
Perry estimated that, as a Staffing Consu ltant, she spent two hours or more per day “prospecting”—calling clients and prospective clie nts about potential openings. She spent aboutNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 14

an hour each day visiting clients and prospective clients in person. Perryspent about another 4.5 hours per month taking clients and prospective c lients of her choosing out for meals. Perry also spent 2–3 hours per month at networking events . It is not clear how the remainder of her time was divided. Perry’s base hours were 9:00 a.m. to 5:00 p.m., but she could vary her hours somewhat as long as she met the 100-point quota. In practice, Perry typically worked from 7:00 a.m. to 5:30 or 6:00 p.m., and ate lunch ather desk. She worked some Saturdays and averaged 55 hours per week.
ii. Senior Staffing Consultant Duties – August 2013 to December 2013
Perry testified that her duties did not change when she was promoted to Senior Staffing Consultant. She was expected to do more client visits than in her previo us role, but she did not spend more or less time on that task. Perry was also expected to generate more new clients each month, so she spent more time pr ospecting, but she did not say how much more, nor did she say whether that meant less time on other tasks, or wh ether she simply worked more hours in total. Perry may have been given a new position descrip tion (which has not been identified in the record by either side), but was not told of any change in her duties or in how her performance
would be reviewed.

b. Erin Lane
Lane was a Talent Acquisition Specialist from December 2011 to February 2012, an Account Manager from February 2012 to A ugust 2012, a Senior Account Manager from August 2012 to February 2013, and an Assistant Branch Manager from February 2013 to July 2014. Her testimony about the 100-point quota was substantially the same as Perry’s.
i. Talent Acquisition Specialist Duti es – December 2011 to February 2012
Lane began working for Today’s Office Pr ofessionals in April 2010 as a staffing consultant. Her duties were “[t] o recruit candidates for temporary, temp to hi re, and direct hire positions,” to “[m]onitor weekly payroll,” to “[d]o hiring orientations,” and to “assist clients and candidates and employees with any questions , concerns, problems, [and] pretty much be there to be like a customer service representati ve for them.” (R. 36-6, PID 345.) Today’s OfficeNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 15

Professionals was purchased by Randstad in December 2011 or January 2012. Lane’s title became Talent Acquisition Specialist.

Lane testified that after the switch to Randsta d, she “did not have any sales expectations” and had no responsibility for searching for new clients. (R. 67-7, PID 1556.) However, Lane later testified that upper management expected Talent Acquisi tion Specialists to try to develop sales leads for other employees to follo w up on. Lane also testified that she did visit prospective clients, because she “did not function as a true talent acquisition specialist” due to the difficulty in fitting her existing duties into the Randstad hierarchy. (R 36-6, PID 346; R. 67-7, PID 1560.)

There is no evidence in the record as to how many hours, or what percentage of her time, Lane spent on particular tasks as a Talent Acquisition Specialist.
ii. Account Manager Duties – February 2012 to August 2012
Lane was promoted to Account Manager in Fe bruary 2012. She testified that “[i]t was the same duties that I was doing in concept befo re.” (R. 67-7, PID 1559–60.) She “was still recruiting and handling payroll, ha ndling hiring paperwork[], interv iewing, working with clients, everything that I was used to doing . . .” ( Id. 1560.) And she continued to visit prospective
clients.
Upon becoming an Account Manager, Lane worked with all of the branch’s clients. ( Id. ) Later in 2012, Randstad divided the clients base d on location and whether the client “was a national account or a retail account.” ( Id. ) Lane testified that she “was given control over all national accounts, which were our larger firms. I did still support a few retail accounts that I had positive relationships with.” ( Id. )

Lane testified that two of her duties were the most important: “to make sure that . . . our clients had what they needed or were requesting from us, and . . . finding the best candidate for [each] opening.” ( Id. ) Lane was presented with a job description for an Account Manager at her deposition (which is not in th e record), but testified that it did not match her actual responsibilities. She explaine d that “it does not include that you were required to process payroll, hire candidates and go through all of the hiring pape rwork and training with them”—No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 16

tasks that were “quite frequent and time consuming.” ( Id. at 1561.) Lane also testified that the job description was inaccurate because her sale s responsibilities focuse d “more within current customers than new development.” ( Id. ) She called or emailed current clients about once per week “to make sure that they were happy.” ( Id. at 1562, 1574.) But since she already knew their needs, there was little need to try to sell to them. As Lane put it: “We built relationships to make sure that they were happy,” so that “when they ha d a need . . . we woul d get the business.” ( Id. at 1562.)

When one of Lane’s clients needed to fill a position, the client w ould either contact her directly or via a Randstad databa se. If the position was highly-p aid or not an administrative job (e.g., warehouse laborer), Lane would refer it to another Rands tad division. She “was . . . tracked on how many orders [she] broughtin from current customers.” ( Id. at 1565.) Lane wrote job descriptions independe ntly, relying on her degree in human resources and publically available resources. She also prepared standard job descriptions for use by other branch employees. Lane worked collabor atively with other employees to determine the rate a worker would be paid.
Lane’s description of the process for identify ing candidates was similar to Perry’s (use of social media and internet resources, phone screen ings, in-person interviews). However, Lane testified that it was her decision whether to pos t an available position th rough Randstad’s system
or to search for candidates inother ways. Regarding recomme nding candidates, Lane testified that it was important to match candidates to clients: “If so mebody was really, really bubbly, we wouldn’t want to put them with a client that had a very calm and quiet environment. They wouldn’t do well there.” (R. 55-3, PID 678.) Lane elaborated:
We had some [clients] that were very la id back, and you could wear jeans to work every day . . . . Somebody that had a very corporate personality and needed direction and didn’t have so much of a creative mind wouldn’t fit well there. So we would look to place them at more of a corporate office. So we talked to them in the interview about . . . what would your ideal workplace look like, what would your ideal manager do . . . . Things of th at nature to try and make sure we put them in the best spot. Because many tim es we had . . . more than one position open that they could fit for. And then it came down to environmental fit, because that’s just as successful as to whether or not they can do the job.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 17

( Id. at 680–81.) Lane made the ulti mate decision which candidate(s) to recommend to a client. She was also part of a team that decided how much to bill clients, but sh e did not have ultimate decision-making authority.
As to dealing with unsuccessful matches, Lane testified that it was her role to coach the workers “at least once.” ( Id. at 686.) If the problem conti nued, Lane employed warnings and additional coaching. Normally, Lane had the authority to decide whatintermediate steps to take. ( Id. at 688–89.) Sometimes, “something happened th at justified immediate termination,” and Lane would fire a worker. ( Id. at 687.) Other times, the client made the final decision and Lane
carried it out. Lane advi sed clients on whether termin ation was appropriate. ( Id. at 688.) She was involved in coaching or firing someone “at least once a week.” ( Id. at 689.) In a broad sense, Lane was the intermediary between the cl ient and the worker for all issues which might
arise.

Further, Lane continued to a ssist other Randstad in-house employees with new client or prospective client visits, doing so about once per month. She w ould make three or four cold calls to prospective clients per week, based on leads derived from her own network, “even though that was not [her] job re quirement.” (R. 67-7, PID 1571

. ) Lane also attended networking events to promote Randstad and build the branch ’s candidate pool. She attended these events about once per quarter, and each event took two to three hours. Finally, Lane conducted annual visits to each client to insure the workplace was safe according to prescribed criteria.
Lane had a “small” amount of flexibility to order her own work by deciding which tasks to do when, “[a]s long as at the end of the week, [she] still ha d the hundred points and [she] had met all expectations.” ( Id. at 1574

. ) Aside from the information about networking events, there is no evidence in the record rega rding exactly how many hours, or what percentage of her time, Lane spent on particular tasks as an Account Manager.
iii. Senior Account Manager Duti es – August 2012 to February 2013

Lane was elevated to Senior Account Mana ger in February 2013. Her responsibility for mentoring others increased, but otherwise her job duties did not change. There is no evidence inNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 18

the record regarding how much time Lane spen t on her various duties as a Senior Account Manager.
iv. Assistant Branch Manager Du ties – February 2013 to July 2014
After being promoted to Assistant Branch Manager in February 2013, Lane had new, additional duties. She “had authority to counsel employees internally.” ( Id. at 1566

. ) She was also responsible for hand ling “any escalated issue th at one of my staff coul d not handle internally or with a client or employee.” ( Id. ) Lane also had new reporti ng requirements, attended managers’ meetings and conference calls, and trav eled quarterly to Randstad’s Chicago office. Additionally, she had increased responsibility for attending cust omer visits with the lessexperienced sales staff to support them. Although “[ e]veryone in the branchreported directly to [Lane],” and she participated in performance re views and made recommendations about hiring and firing, Lane did not have ultimate au thority to hire or fire employees. ( Id. at 1566–67

. )
Despite those new duties, Lane was still e xpected to earn her 100 points per week, and her individual performance metrics were “bas ically the same” as in her prior role. ( Id. at 1569

. ) However, she “was required to develop more new business,” including via cold calls. ( Id. )

c. Aimee Dooling
Dooling was a Staffing Consultant from December 2011 to September 2012, an Account Manager from October 2012 to August 2013, and a Senior Account Manager for a few weeks in August 2013. Her testimony about the 100-point quot a was substantially the same as Perry’s testimony.
i. Staffing Consultant Duties – December 2011 to September 2012
As a Staffing Consultant, Dooling was “required to sell 50 percent of the time as well as recruit 50 percent of the time.” (R. 67-2, PID 1462.) Selling meant “going out and finding new business,” including “lots of phone calls, lots of cold -calling” and prospective client visits, if she was able to set them up. ( Id. ) Dooling was also responsible fo r sending out “lots of marketing material,” much of which Randstad required her to hand-address or add a personal note to. ( Id. ) She was required to reach out to prospective clie nts in her assigned territory that met Randstad’sNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 19

criteria. She used Randstad’s data base of potential contacts, and al so conducted inte rnet research and did cold calls to add new pr ospective clients to the database herself. Dooling also knocked on the doors of potential clients several times per month; when she did so, she would be away from the office for approximately half a day. Dooling generally used a script provided by Randstad to guide her cold calls and m eetings with prospective clients.
If a prospective client was interested, Dooling would “sen d[] over contracts to solidify that relationship with the new client” and “start recruiting for that client’s needs.” ( Id. ) To do so, she would develop a “job order” base d on the client’s requirements. ( Id. at 1464.) Dooling usually prepared job orders toge ther with Lane, her supervisor. Dooling also negotiated the worker’s pay and the billing rate to the client , although, again, “many times [she] did refer to management on that as well.” ( Id. ) In negotiating, the range she could agree to was set by her managers. ( Id. at 1478.)
As for recruiting, Dooling described her duties as:
recruiting online, bringing candidates in for face-to-face interviews, completing reference checks, doing what we called write-ups, so that is highlighting the candidate’s skill sets and ju st bullet-pointing out maybe th e skills that they have that the client is looking for. Also assisting in their resume itself, maybe cleaning it up, fixing grammatical errors, things of that nature. Preparing the candidate for the interview, following up after the inte rview with the client as well as thecandidate. That also included occasionally phone interviews prior to a face-toface interview or maybe a second interview with another manager.
( Id. at 1462.) Dooling also co mmunicated with candidates afte r their interviews and, if a candidate was hired, handled the candidate’s entry-on-duty paperwork. Once a candidate was placed with a client, Dooling followed up regularly with both the worker and the client to make sure the placement was a success.
From Dooling’s point of view, “there wasn’t one activity that was more important over another. All of your responsib ilities were important.” ( Id. ) Rather, what mattered most “was getting your hundred points.” ( Id. )
Dooling typically started work between 7:00 and 7:30 a.m., and left between 6:00 and 7:00 p.m. She ate lunch at her desk. She occasionally worked weekends.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 20

ii. Account Manager and Se nior Account Manager Duties – October 2012 to August 2013
Dooling was shifted from Staffing Consu ltant to Account Manager because she had developed a strong relationship with a particular client, and her best skill was “farming . . . current relationships” to get more business from existing clients. ( Id. at 1466–67.) In her new role, she was “no longer . . . calling for new business.” ( Id. at 1467.) Otherwise, Dooling’s new duties were “[v]ery similar” to her old duties. ( Id. ) She still went on client visits and called new managers at her existing national-account client s. She also reached out to Randstad’s national customers with locations in her territory that were not yet using Randstad’s services. Dooling was still responsible for generating business, but she did so via “relatio nship building” rather than cold calls. ( Id. at 1468.) To that end, she sometime s took clients out for meals. Dooling also inspected new clients’ workspaces for safety.
As an Account Manager, Dooling continue d recruiting, conducting interviews, following up with candidates, and following up with clients. To match candidates and clients, Dooling
focused on whether the candidate’s skills were “transferable . . . to [the new] role” and whether the candidate “would be a good fit for [the client] or [the client’s] environment.” ( Id. at 1473.)
She also used reference checks to find out whethe r a candidate’s past habits, such as punctuality, would satisfy the client’s particular expectations. As Dooling explained:
It was important to know [the client’s] environment . . . the way the office was r[u]n, the hierarchy of the office . . . . [T]hat was something that Randstad wanted you to do, was really understand your client, really understand their needs. . . . It was about really knowin g your client and really being that true business partner so that you could find that best fit for them, that true fit, so that they’re going to come back to you.
( Id. ) Randstad provided Dooling a list of questions to ask to help understand a client’s business. Sometimes, Dooling also visited a client’s offi ce to sit in on the client’s interview with a
recommended candidate.
Dooling also continued to monitor placemen ts for success. She “would do roundtable check-in . . . it was about things going on, like wh ether people maybe were showing up late or their attire they were choos ing was inappropriate.” ( Id. at 1467.) She did “counseling, things of that nature.” ( Id. ) If there was a problem, her goal was “[t]o have a peaceful ending,” and toNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 21

make both the client and the candidate happy. ( Id. at 1481.) However, Dooling also “had to go on site” if workers “needed to be fired.” ( Id. at 1467.) For example, one worker got into an argument with the client’s on-site manager and “us[ed] some suggestive language.” ( Id. at 1477.) The client’s on-site manager made the decision to terminate the worker, and Dooling carried out the firing. On othe r occasions, “there would be opportunities to counsel” a worker, such as the time a worker reported to a job site “wearing stilettos and a low-cut shirt” that was “just not appropriate for a work environment.” (Id. )
One change in the new role was that Dool ing now also “did on-site meetings” with
clients that had concerns about th eir relationship with Randstad, or about issues in the news such as the Affordable Care Act; sometimes Dooli ng was accompanied by a manager, sometimes she went alone. ( Id. at 1470–71.) Another change was that Dooling no longer negotiated her clients’ billing rates, as they were set on a national basis.
Finally, Dooling testified that her supervisor s closely scrutinized all of her work, and regularly reviewed her work plan for each day.
4. Analysis
a. Talent Acquisition Specialist
Lane worked as a Talent Acquisition Specialist from December 2011 to February 2012. When asked at oral argument wh ether any Randstad employees are not covered by the administrative exemption, Randstad’s counsel res ponded that its Talent Acquisition Specialists are not exempt because they are only involved in “sourcing candidates” and checking candidates against established criteria. (Oral Arg. at 16: 20.) Because Randstad concedes Lane was not covered by the administrative exemption during he r time as a Talent Acquisition Specialist, we need not analyze her duties during that period. 7

7 Randstad says nothing about the duties of Talent Acquisition Specialists or Lane’s time in that role in its brief to this court. Below, Randstad argued that C houdhury, a Talent Acquisition Sp ecialist, was covered by the administrative exemption because she al so performed exempt work. Whether counsel intended to reverse that stance at oral argument, or was speaking generally about all Talent Acquisition Specialists other than Choudhury is immaterial. Either way, counsel’s concession cove rs Lane’s time as a Talent Acquisition Specialist.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 22

b. Account Manager/Se nior Account Manager

Lane testified that she had more mentoring responsibilitie s after being promoted from Account Manager to Senior Acc ount Manager, but that her du ties were otherwise unchanged.
And Randstad’s brief to this court does not dis tinguish between the two positions. We therefore analyze them together.
To determine whether Lane and Dooling exer cised discretion and independent judgment such that they were covered by the administrative exemption during their time as Account Managers, we must decide whether their “primary duty” was “the performance of exempt work.” 29 C.F.R. § 541.700(a); see id. § 541.202(a). This requires a totality-of-the-circumstances analysis emphasizing “the character of the employee’s job as a whole,” informed by the nonexclusive list of relevant f actors identified by the DOL. See 29 C.F.R. § 541.700(a).
With that in mind, we agree wi th the district co urt that matching candidates to clients based on fit—meaning subjective criteria such as the match between a candidate’s personality and a client’s corporate culture—a s opposed to objective criteria su ch as years of experience or test scores, involves meaningful di scretion and indepe ndent judgment. Andrade , 700 F. Supp. 2d at 747; Quintiliani , 944 F. Supp. 2d at 746–47); 2005 WHD Letter at *1; ( see R. 94, PID 2229). So, too, does independently drafting job descripti ons, deciding which recruitment tools to use, negotiating how much to pay the worker and how mu ch to bill the client (even without ultimate decision-making authority), and counseling work ers and otherwise dealing with unsuccessful placements. Andrade , 700 F. Supp. 2d at 747–48; Quintiliani , 944 F. Supp. 2d at 746–47); 2005 WHD Letter at *1. These responsibilities involved “the comparison and the evaluation of possible courses of conduct,” and reflect the auth ority “to interpret[] or implement management policies or operating practices,” to “represent[] the company in handling complaints,” and “to make . . . independent choice[s], free from immedi ate direction or supervis ion” with respect to matching workers and clients. 29 C.F.R. § 541. 202(a)-(c). Thus, during their time as Account Managers, Lane’s and Dooling’s matchmaking ta sks fit within the administrative exemption.
We next ask whether those exempt matchmaking tasks were Lane’s and Dooling’s “primary dut[ies]” as Account Managers. See id . § 541.202(a). “[E]mployees who spend moreNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 23

than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement.” See id. § 541.700(b). Randstad offers no evid ence showing how much time Lane and Dooling spent on exempt task s. And Lane and Dooling bothperformed basic recruiting tasks during their time as Account Managers, which Randsta d acknowledged at oral argument are non-exempt. (Oral Ar g. at 16:20.) These tasks, such as handling payroll and processing workers’ paperwork, were “quite frequent and time consuming.” (R. 67-7, PID 1561.) Given the limited evidence presented, we cannot say thatLane and Dooling spen t more than 50 percent of their time on exempt tasks as Account Managers. See Schaefer , 358 F.3d at 400–01 (finding summary judgment inappropriate, in part beca use the plaintiff’s testimony created a factual dispute over whether he actually spent th e majority of his time on exempt tasks).

That does not mean the administrative exemption is inapp licable, however. See 29 C.F.R. § 541.700(b). When asked at her de position how important matching candidate to client was, Lane answered: “I would say about 50 percent.” (R. 55-3, PID 684.) She also testified that her two most important duties were: “to make sure that . . . our clients had what they needed or were requesting from us, and . . . finding the best candidate for [each] opening.” (R. 67-7, PID 1560.) Thus, while matchmaking may not have taken up the majority of Lane’s and Dooling’s time as Account Managers, matchmak ing tasks were their “principal, main, major or most important duty.” 29 C.F. R. § 541.700(a). Further, Lane had at least some flexibility to decide which tasks to do when, was given cont rol over all national acco unts, wrote her own job descriptions, chose her own recruitment tools, ma de the ultimate decision as to which candidates to recommend to her clients, and sometimes (but not always) fired workers without first consulting with the client or a supervisor. Thus, as an AccountManager, Lane had “relative freedom from direct supervision,” which s upports the conclusion that the administrative exemption applied. 29 C.F.R. § 541.700(a); see id. at § 541.202(c); Andrade , 700 F. Supp. 2d at 747–48; 2005 WHD Letter at *1.
Dooling had less independence than Lane. For example, she was more closely scrutinized by her supervisors, w ho regularly reviewed her work pl an for each day. And there is no evidence Dooling ever hired or fired a work er on her own authority , as opposed to in consultation with a client or supervisor. Howeve r, “[t]he fact that an employee’s decision mayNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 24

be subject to review . . . does not mean thatthe employee is not ex ercising discretion and independent judgment.” 29 C.F.R. § 541.202(c). 8

Thus, considering all of the relevant record ev idence, we agree with the district court that Lane’s and Dooling’s primary duties as Account Managers involved the ex ercise of sufficient discretion and independent j udgment such that the admini strative exemption applied.
c. Staffing Consultant/Senior Staffing Consultant
We analyze Perry’s and Dooling’s work as Staffing Consultants together with Perry’s work as a Senior Staffing Consultant because Pe rry’s promotion did not change the nature of her duties, and because Randstad does not distinguish the two positions.
A Staffing Consultant’s duties, like an Account Manager’s, included a mix of exempt and non-exempt recruitment and placement tasks. Staffing Consultants ha d the same sort of

8 It is true, as Judge Moore’s partial dissent argues, that Randstad constrained Plaintiffs’ discretion by establishing a points system and requiring adherence to Randstad’s protocols and procedures. (Op. of Moore, J., at 34–36.) However, the fact that an employee’s discretion is “somewhat circumscribed by her district manager’s supervision and [the employer]’s standardized operating procedures” does no t make the exemption inapplicable. Thomas v. Speedway SuperAmerica , LLC , 506 F.3d 496, 507 (6th Cir. 2007). And neither the points system nor the protocols diminished Plaintiffs’ subjective decision-making authority in determining whether candidates possessed sufficient communication skills or whether their person alities matched a client’s profile and needs. Based on Plaintiffs’ subjective assessment of a candidate, Plaintiffs made the ultimate determination whether a candidate as a whole was a good “boss, company and culture fit,” and whether to recommend the candidate to a client. Thus, Plaintiffs’ discretion in assessing and recommending candidates was “free from immediate direction or supervision.” 29 C.F.R. § 541.202(c). The partial dissent also argues that Plaintiffs’ matchmaking duties fall outside of the administrative exemption because “none of the Plaintiffs in this case had th e authority to ‘formulate’ or even ‘interpret’ or ‘implement’ Randstad’s policies.” (Op. of Moore, J., at 34 (quoting 29 C.F.R. § 541.202(b)).) However, Plaintiffs’ own testimony about the importance of subjective decision- making when recommending candidates to clients indicates that matchmaking did involve interpreting and implementing Randstad’s policies. Although the authority to formulate or deviate from policies may alone be sufficient to trigger the administrative exemption, it is not a necessary requirement because the regulations provid e examples of employees who qualify for the exemption although th ey lack any apparent authority to formulate or deviate from policies. See, e.g. , id. § 541.203(b) (“Employees in the financial services industry generally meet the duties requirements for the administrative exemption if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments or debts; determin ing which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promo ting the employer’s financial products.”); § 541.203(e) (“‘[W]hen interviewing and screening functions are performed by the human resources manager or personnel manager who makes the hiring decision or makes recommendations for hiring from the pool of qualified applicants, such duties constitute exempt work . . . .”); § 541.203(f) (“Purchasing agents with authority to bind the company on significant purchases generally meet the duties requirements for the administrative exemption . . . .”). Finally, although Plaintiffs exercised less discretion than the Staffing Managers described in the 2005 WHD Letter, ( see Op. of Moore, J., at 36–37), they exercised significantly more discretion than the personnel clerks described in 29 C.F.R. § 541.203(e).No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 25

matchmaking responsibilities as Account Manage rs, but generally with less independence and more supervision. As Perry testified, Staffing C onsultants had at least some discretion to decide which tasks to do when. Instead of writing her own job descriptions, however, Perry used Randstad’s in-house resources and was required to follow rigid procedures so as to produce a job description that tracked Randstad’ s required format. Similarly, Pe rry was required to post all her vacancies via Randstad’s internal system, which routed them to predetermined external web sites, and it was only if that process failed to produce qualified candidates that she had discretion to recruit independently. And while admittedly not dispositive for the reasons discussed, there is no evidence that Perry had the authority to unilaterally fire an arranged worker.
Further, Perry testified that her most important duty as a Staffing Consultant was “selling Randstad services,” not matching candidates to c lients. (R. 67-6, PID 1 520.) To that end, she spent time reaching out to both existing and pr ospective clients. This involved sending out marketing materials according to Randstad policie s, making phone calls on a schedule set by the company, and knocking on doors in specific areas and on specific streets assigned by branch management. Perry was free to use her own network and initiative to identify new prospects, but even then, those prospects had to fit criteria set by Randstad. Dooling gave similar testimony about her sales duties during her time as a Staffing Consultant.
It appears that most of a St affing Consultant’s sales respons ibilities involved little more than “use of skill in applying well-established techniques, procedures or specific standards” prescribed by Randstad. 29 C.F.R. § 541.202(e). As related to sales, the record evidence does not establish that Staffing Consultants had “authority to formulate, affect, interpret, or implement management policies or operating practices,” and, accepting Plaintiffs’ testimony as true, Staffing Consultants had little or no ability to “w aive or deviate from established policies and procedures without prior approval.” Id . § 541.202(b). Nor is there ev idence they “c arrie[d] out major assignments” or “perform[ed] work that affect[ed] business operat ions to a substantial degree.” Id. Considering “all the facts involved”— and appearing in the record—Staffing Consultants’ sales activities were non-exempt. See id

. Judge Sutton’s partial dissent argues that Plaintiffs’ sales duties fall within the administrative exemption because Plaintiffs “ex ercised considerable discretion in marketingNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 26

Randstad’s services within their assigned territories.” (Op. of Su tton, J., at 38.) The partial dissent relies on two out-of-circuit cases, Schaefer-LaRose v. Eli Lilly & Co. , 679 F.3d 560 (7th Cir. 2012) and Smith v. Johnson & Johnson , 593 F.3d 280 (3d Cir. 2010), both involving pharmaceutical sales representati ves. The cases, however, are distinguishable because the plaintiffs in Schaefer-LaRose and Smith had far more independence than Perry and Dooling had as Staffing Consultants.

In Smith , the Third Circuit found that the admini strative employee exemption applied to a traveling pharmaceutical sales representative who used a high level of planning and foresight to develop a strategic sales plan , and who performed her duties independently without direct oversight, running “her own territory as she saw fit.” 593 F.3d at 285. Smith testified in her deposition: “It was really up to me to run the territory the way I wanted to. And it was not a micromanaged type of job. I had pr etty much the ability to work itthe way I wanted to work it.”
Id. at 282–83.

In Schaefer-LaRose , the Seventh Circuit concluded that the pharmaceutical sales representatives at issue exercised independentjudgment and discretion because the employer
trained them extensively in disease pr ocesses, [the employer’s] own assigned products, and products manufactured by comp etitors; indeed they were tested in their substantive knowledge. The level of attention give n to substantive education demonstrates that the company viewed th ese individuals as employees needing a solid understanding of the message that they were delivering if they were to fulfill their roles as the company’s represen tative to the community of practicing physicians. A significant amount of disc retion is no doubt requi red to determine when the physician’s inquiry is sufficientlynuanced to require a response from a more knowledgeable individual than the representative himself. The representative who is unable to tailor the conversation to the time and circumstances, or to engage the physicia n in an intelligent conversation, is understandably not an effective represen tative to the professional community whose estimation of the comp any is key to its success.

679 F.3d at 581. In fact , the plaintiff in Schaefer-LaRose “described herself as a ‘scientist,’ rather than a salesperson, because she was charge d with ‘convey[ing] scientific information to physicians about how and why [the employer’s ] product is beneficial to patients.’” Id. at 568 n.16 (citation to record omitted). Moreover, be fore visiting a particular physician, a sales representative would develop “a pre-call plan,” which could include reviewing the physician’sNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 27

prescribing practices, patient population, and similar informati on, to develop a strategy for a conversation with the physician that would indu ce the physician to pr escribe the employer’s pharmaceutical products. Id. at 563–64.

Here, however, Plaintiffs’ discretion as Staffing Consultants was much more circumscribed; in contrast to the representatives in Schaefer-LaRose and Smith , Perry and Dooling fulfilled their sales duties by merely following Randstad’s well-established techniques and procedures to meet the pre-de termined quotas. The record is cl ear that Plainti ffs were able to “run their territor[ies]” only as Randstad saw fit and di d not have the authority to independently “develop a strategic plan” to effectuate their dutie s. For instance, although Perry sometimes knocked on prospective clients’ doors on her own initiative, she was also required to participate in door-knocking “blitzes,” for whic h Randstad assigned her (and her colleagues) to specific ZIP codes and streets. (R. 67-6, PID 1522.) Further, Perry was required to make follow-up calls to prospective clients on the sc hedule prescribed by Randstad, and she could not
choose to deviate from Randstad’s commands inany meaningful way. Moreover, unlike the representatives in Schaefer-LaRose , Plaintiffs’ task was merely to sell Randstad’s staffing services, not to “convey scientific information” while navigating “federal law and . . . medical ethics requirements” in a “ti ghtly regulated indu stry.” 679 F.3d at 562–63, 568 n.16 (alteration removed from first quotation).
Turning to the question of the Staffing Consulta nts’ primary duties, Dooling testified that her non-exempt sales duties took up “50 percent of [her] time.” (R. 67-2, PID 1462.) She spent
the rest of her time on a mix of exempt and non-exempt recrui ting and matchmaking duties. Based on the estimates of time spent on various tasks Perry offered du ring her deposition, she spent at least five hours per day on sales activities, perhaps more. Th e record is silent as to how much time Dooling or Perry sp ent on exempt matchmaking activ ities as opposed to non-exempt routine recruiting duties. Thus, as with A ccount Managers, we must draw the reasonable inference that Staffing Consultants spent less than half their time on exempt tasks. See Schaefer , 358 F.3d at 400–01. This is signif icant because factors other th an time do not compel the conclusion that a Staffing Consulta nt’s “primary duty” was “the performance of exempt work.” 29 C.F.R. § 541.202(a)-(b). As discussed above, Staffing Consultants ha d relatively littleNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 28

freedom from direct supervision, and Randstad ma kes no attempt to advan ce its case based on “the relationship between [a Staffing Consultant]’s salary and the wages paid to other employees,” such as Talent Acquisition Specialis ts, “for the kind of non exempt work performed by [Staffing Consultants].” Id. § 541.202(a).

For those reasons, a reasonable tr ier of fact could find that Perry’s and Dooling’s primary duties during their time as Staffing Consulta nts were their non-exempt sales and routine recruiting tasks, not their ex empt matchmaking duties. See Schaefer , 358 F.3d at 405–06 (“To the extent that [defendant] does point to some tasks that undisputedly require the exercise of discretion, [defendant] has failed to establish the extent to which [plaintiff] completes these tasks as part of his primary duty and thus fails to meet its burden.”). The distri ct court thus erred in granting summary judgment to Randstad as to Dooling’s and Perry’s time as Staffing Consultants based on the administrative exemption. 9

d. Assistant Branch Manager
When asked at oral argument whether any Randstad employees were covered by the administrative exemption, Plaintiffs’ counsel acknowledged that empl oyees who managed a branch office were covered, and stated that Plai ntiffs were “not pressi ng” the assertion that Assistant Branch Managers fell outside the exemp tion. (Oral Arg. at 2:08.) We take that as a concession that Lane was covered by the admi nistrative exemption during her time as an Assistant Branch Manager, from February 2013 to July 2014. And, to the extent counsel may not have intended to concede this point, we have no trouble concl uding that Lane’s responsibilities as an Assistant Branch Mana ger—which included supe rvising everyone other than the branch manager, counseling Randsta d’s internal employees, participating in performance reviews, dealing with problems her subordinates could not resolve, and at least some exempt matchmaking duties, co nsisted primarily of exempt work.

9 We express no opinion on whether any other exemptions apply, as Randstad has not raised any other exemptions on appeal.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 29

C. The Good-Faith Reliance Defense

Since Randstad is not entitled to summary judgment regarding Lane’s time as a Talent Acquisition Specialist, Dooling’s time as a Staffing Consultant, or Perry’s time as a Staffing Consultant and Senior Staffing C onsultant, we turn to the applic ability of the statutory good-faith
reliance defense.

The Portal-to-Portal Act of 1947 “protect[s] employers from liability if they took certain actions on the basis of an interpretation of the law by a government agency, even if the agency’s interpretation later turn ed out to be wrong.” Equal Emp’t Opportunity Comm’n v. Home Ins.
Co. , 672 F.2d 252, 263 (2d Cir. 1982); see Fazekas v. Cleveland Cl inic Found. Health Care Ventures, Inc. , 204 F.3d 673, 679 n.3 (6th Cir. 2000). The statute provides that:
no employer shall be subject to any liabilityor punishment for . . . failure of the employer to pay minimum wages or overtime compensation under the [FLSA] . . . if he pleads and proves that the act or om ission complained of was in good faith in conformity with and in reli ance on any written admini strative regulation, order, ruling, approval, or interpretation, of [the Administrator of th e WHD] . . . with respect to the class of employers to wh ich he belonged. Such a defense, if established, shall be a ba r to the action or proceedi ng, notwithstanding that after such act or omission, such administrati ve regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.
29 U.S.C. § 259(a), (b)(1); see also 29 C.F.R. §§ 790.13-790.19 (defining key terms and giving illustrative examples). Thus, the statute “provi de[s] an affirmative defense to employers” who comply with its terms and th e “accompanying regulations.” Fazekas , 204 F.3d at 679 n.3. The
district court found the defense a pplicable here. We disagree.
1. “In Conformity With” and “Good Faith”
The operative administrative interpre tation here is the 2005 WHD Letter. 10 The 2005 WHD Letter is a qualifying written ruling by the Administrator. See id. ; 29 C.F.R. § 790.17(d). Further, Plaintiffs do not dispute that Rands tad actually relied on the 2005 WHD Letter. The

10 The 2005 WHD Letter was relevant to our retrospective analysis of whether Plaintiffs were covered by the administrative exemption. See Fazekas , 204 F.3d at 677–79. Whether Randstad can make out a valid defense based on its prospective reliance on the 2005 WHD letter is a separate question.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 30

only open questions, then, are whether Randsta d acted “in conformity with” the 2005 WHD Letter and in “good faith.”
The DOL has published regulations interpreting those two statutory terms. 29 C.F.R. §§ 790.14 (“in conformity with”), 790.15 (“good faith”). We have never directly addressed the matter, however. The closest we have come is Marshall v. Baptist Hospital, Inc. , 668 F.2d 234 (6th Cir. 1981). In that case, we held thatthe employer hospital was protected by the good-faith reliance defense because it reasonably relied on the portion of the WHD’s then-current Field Operations Handbook that specifically stated stud ent x-ray technicians we re not “employees” for purposes of the FLSA, rather than another, more general section, that st ated medical training programs would be evaluated on a case-by-case basis. Id. at 237–39. 11 However, the instant case does not involve conflicting guidance from the WHD, and Marshalldoes not speak directly to the meanings of “in conform ity with” and “in good faith.” Further, “[i]n the years following
Marshall , [we have] had little additional opportun ity to construe . . . § 259(a).” See Schneider v. City of Springfield , 102 F. Supp. 2d 827, 833 (S.D. Ohio 1999)).

Other courts, however, have considered both 29 U.S.C. § 259( a) and 29 C.F.R. §§ 790.14-15, and concluded that the “in conformity with” and “good faith ” requirements are related, but distinct. See, e.g. , Cole v. Farm Fresh Poultry, Inc. , 824 F.2d 923, 926 (11th Cir. 1987). As to good faith, one well-reasoned opini on from within our circuit explained:
The good faith requirement contains both subjective and objec tive components. The subjective component requires an empl oyer to show that it had “honesty of intention and no knowledge of circumstances which ought to put him upon inquiry.” However, subjective good faithis not enough—the employer must also satisfy an objective test. In other word s, “good faith is not to be determined merely from the actual state of [the employer’s] mind.” The employer must show that it “acted as a reasonably prudent man would have acted under the same or similar circumstances.”
Swigart v. Fifth Third Bank , 870 F. Supp. 2d 500, 510 (S.D. Ohio 2012) (quoting 29 C.F.R. § 790.15(a); other citation omitted) (alteration in Swigart). Succinctly put, “[g]ood faith requires

11 The handbook has since been revised, and now states that all paramedical training programs, including those for x-ray technicians, should be evaluated on a case-by-case basis. U.S. Dep’t of Labor, Wage & Hour Div., Field Operations Handbook §§ 10b11, 10b14, https://www.dol.gov/whd/FOH/FOH_Ch10.pdf.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 31

that the employer have . . . no knowledge of circumstances which ought to put him upon inquiry.” 29 C.F.R. § 790.15(a) (interna l quotation marks and citations omitted).
As to conformity, “[a]n employer cannot ava il itself of the defense unless it relied on a DOL interpretation that specifically addresses its circumstances.” Swigart , 870 F. Supp. 2d

. at 512 (citing Frank v. McQuigg , 950 F.2d 590, 597–98 (9th Cir. 1991)). “In other words, ‘[t]he administrative interpretation relied upon must provide a clear answer to the particular situation in order for the employer to rely on it.’” Id. (quoting Cole , 824 F.2d at 928 (alteration in Swigart); see Bollinger v. Residential Capital, LLC , 863 F. Supp. 2d 1041, 1050–51 (W.D. Wash. 2012) (collecting cases); Schneider , 102 F. Supp. 2d at 833 (same). Finally, “[i]f there is no conformity, general good fa ith in other respects cannot save the day.” Swigart , F. Supp

. 2d at 512 (quoting Home Ins. Co. , 672 F.2d at 265).
2. Analysis
The parties focus their argument s on whether or to what exte nt Plaintiffs’ duties matched those described in the 2005 WHD Letter. In doing so, they conflate two separate questions. First, were the two sets of du ties so similar that the 2005 WHD Le tter “provide[d] a clear answer to the particular situation” faced by Randstad when it decided how to classify Plaintiffs (conformity)? Cole , 824 F.2d at 928. Second, did Rands tad act reasonably, or did it have “knowledge of circumstances” that should have prompted further inquiry before relying on the 2005 WHD Letter (good faith)? 29 C.F.R. § 790.15(a) . Asking the proper que stions reveals that
the district court erred.

Randstad’s reliance on the 2005 WHD Letter is shown through five letters from its attorney, Alexander Passantino, all written between May 28 and July 16, 2010. Each letter addresses the FLSA status of one group of Randst ad employees: Staffing Consultants; Staffing Managers; Account Managers; Seni or Account Managers; and Assistant Branch Managers. And
each letter cites the 2005 WHD Le tter in support of the conclu sion that the employees in question are covered by the admini strative exemption. Further, James Ferguson, Randstad’s inhouse counsel, attested that he relied on the letter s and the authorities c ited therein, including the 2005 WHD Letter, in classify ing Randstad’s employees.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 32

Randstad’s reliance was not “in conformity with” the 2005 WHD Letter because certain “specified circumstances and facts” cited in the 2005 WHD Letter are absent, at least as to Talent Acquisition Specialists and Staffing Cons ultants/Senior Staffing Consultants. See 29 C.F.R. § 790.14(b). For example, the employees covered by the 2005 WHD Letter had “ full authority to discipline, fire, promote and assign to vari ous tasks the employees they supervise[d].” 2005 WHD Letter at *1 (emphasis added). In Randstad’s Troy office, Talent Acquisition Specialists and Staffing Consu ltants/Senior Staffing Consultants were involved in those decisions, and Staffing Consu ltants/Senior Staffing Cons ultants actively counseled underperforming employees, but they did not have th e ultimate authority to decide to fire an employee. Also, the employees covered by th e 2005 WHD Letter “work[ed ] under very little supervision” and acted “without pr ior approval.” 2005 WH D Letter at *1. That was not the case for Talent Acquisition Specialists and Staffing Consultants/Senior Staffing Consultants. Thus, the 2005 WHD Letter did not provide “a clear answ er to the particular situation” faced by Randstad in deciding how to classify its Talent Acquisition Specialists and Staffing Consultants/Senior Staffing Consultants. See Cole , 824 F.2d at 928; Bollinger , 863 F. Supp. 2d at 1052 (“partial overlap in duties” does notsatisfy the “clear answer” requirement).
Additionally, Randstad has not s hown its reliance was in “good faith” as a matter of law because Randstad arguably had “knowledge of ci rcumstances which ought to” have caused it to inquire further. See 29 C.F.R. § 790.15(a). A recurring them e in Passantino’s letters is that some Randstad employees will spend more time on sales activities than others, and that sales activities are typically no t covered by the administrative exemp tion. Randstad also knew that its employees’ job duties “could vary significantly based on the client s serviced,” “the market,” “who the branch manager is,” and “who the area vice president is for that particular region.” (R. 55-6, PID 761.) For example, in the Troy office, mandatory partic ipation in “contests” sometimes required Plaintiffs to perform tasks outsi de of their usual responsibilities. Despite all this, Randstad classified its employees on a nati onwide basis. At minimum, then, there is a factual question whether Rands tad reasonably relied on the 2005 WHD Letter to classify Plaintiffs as FLSA-exempt without conducting a revi ew of their individual duties, or at least a
review of the duties of employees in the Troy, Michigan office or the relevant region. Swigart , 870 F. Supp. 2d at 511 (good-faith defense not proven as a matter of law in pa rt because “there isNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 33

no evidence that Defendant made an attempt to communicate with its [employees] or their supervisors to determine the [employees’] prim ary job duties or whethe r they were actually performing the same job duties as the mortgage loan officers described in the [relevant WHD] Opinion Letter”).

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s gran t of summary judgment to Randstad as to: (1) Dooling’s cl aim arising out of her time as an Account Manager; (2) Lane’s claims arising out of her time as an Acc ount Manager and Senior Account Manager; and (3) Lane’s claim arising out of her tim e an Assistant Branch Manager. We REVERSE the district court’s grant of summary judgment as to: (1) Lane’s cl aim arising out of her time as a Talent Acquisition Specialist; (2 ) Dooling’s claim arising out of her time as a Staffing Consultant; and (3) Perry’s claims arising out of her time as a Staffing Consultant and a Senior Staffing Consultant. 12

12 We note that the district court did not address Randstad’s statute of limitations arguments below, and Randstad made no statute of limitations arguments on appe al. We therefore express no opinion on the issue.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 34

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ KAREN NELSON MOORE, Circu it Judge, concurring in part and dissenting in part. I agree with the court that Plaintiffs’ sales duties fall outside of the administrative exemption, but I disagree that their matchmaking duties fall within the exemption.
To fall within the administrative exemption, an employee’s primary duties must “include
the exercise of discretion and i ndependent judgment with respect to matters of significance.” 29 C.F.R. § 541.202(a). “The phrase ‘discretion a nd independent judgment’ must be applied in the light of all the facts involve d in the particular employment situation in which the question arises.” 29 C.F.R. § 541.202(b). Mindful that ex emptions to the Fair Labor Standards Act “are to be narrowly construed against the employers seeking to assert them,” Arnold v. Ben Kanowsky, Inc. , 361 U.S. 388, 392 (1960); see also Auer v. Robbins , 519 U.S. 452, 462 (1997), this court must consider several “[f]actors . . . when determining whether an employee exercises discretion and independent judgment with resp ect to matters of significance,” 29 C.F.R. § 541.202(b). “Federal courts generally find that employees who meet at least two or three of these factors are exercising di scretion and independent judg ment, although a case-by-case analysis is required.” 69 Fed. Reg. 22122, 22143 (Apr. 23, 2004). The three factors most
relevant to Plaintiffs’ duties at Randstad, and most likely to bring their matchmaking duties within the administrative exemption, are “wheth er the employee has authority to formulate, affect, interpret, or implement management policies or operating practices”; “whether the employee has authority to waive or deviate from established policies a nd procedures without prior approval”; and “whether the employee provides consultation or expert advice to management.” 29 C.F.R. § 541.202(b). Analyzing thes e three factors, I conc lude that Plaintiffs’ matchmaking duties do not fall within the administrative exemption.
First, none of the Plaintiffs in this case had the authority to “formulate” or even “interpret” or “implement” Randstad’s policies. Id. Randstad constraine d employees’ discretion by establishing a points system requiring them to complete certain tasks to earn 100 points per week. R. 67-6 (Perry Dep. at 270) (Page ID #1550). Randstad further constrained employees’No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 35

schedules by holding “contests” that required them to perform specific tasks at specific times.
Id. 271 (Page ID #1550); R. 67-7 (Lane Dep. at 92) (Page ID #1571). This rigid points system meant that Plaintiffs performe d company-assigned matchmaking tasks each week, rather than deciding on their own how to find candidate s and place them in appropriate jobs.
Beyond lacking authority to decide which ta sks would help them achieve Randstad’s matchmaking goals, or flexibility as to when to perform their assigned tasks, Plaintiffs also lacked discretion over how to perform their assi gned tasks. Randstad had specific requirements for job descriptions, and an outline that employees had to follow when interviewing candidates. R. 67-6 (Perry Dep. at 129, 144–45) (Page ID #1531, 1535); R. 67-2 (D ooling Dep. at 117–18) (Page ID #1473–74). When screening candidates, Plaintiffs selected which candidates to interview based on preset criteria, rather than their own assessment of whether the candidate was a good fit for a particular position. R. 67-2 (Dooling Dep. at 132–33) (Page ID #1476); but see R. 67-6 (Perry Dep. at 143, 152) (Page ID #1535–36) (explaining that she exercised some judgment in deciding who to bring in for an interview, although the deci sions were based on predetermined criteria). Randstad also establis hed a precise timeline for checking on new hires to see how they were doing at their placements. R. 67-6 (Perry Dep. at 158–59) (Page ID #1538); R. 67-7 (Lane Dep. at 149) (P age ID #1576). Plaintiffs did not interpret or implement, let alone formulate, Randstad polic ies; they followed specific rules that they did not help create.

Second, Plaintiffs did not have the authority to deviate from established policies without prior approval. For example, Rands tad had a standard billing rate of 60%. R. 67-6 (Perry Dep. at 119) (Page ID #1529). Plainti ffs could not agree to charge under 60% without prior approval from their supervisors. Explai ning the process of setting the bill ing rate, Perry made clear that the rate “wasn’t up to [her].” Id. at 122 (Page ID #1530). Plaintiffs did not have the authority to
deviate from other Rands tad policies, either.
Third, with one exception, Plain tiffs did not provide advice to management. Randstad gave Plaintiffs formulas for how to advertise job openings, interview candi dates, set a client’s billing rate, and follow up after making a placement. Plaintiffs did not give management advice or suggestions about these formulas, but simply followed them. The exception is Lane’s time as an Assistant Branch Manager; in that capac ity, Lane could “make recommendations regardingNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 36

the hiring and firing of employees at [her] branch ” that would be “very well considered.” R. 67- 7 (Lane Dep. at 74) (Page ID #1567). But even when Lane was an Assistant Branch Manager, she did not have full authority to hire and fire. And as an Assi stant Branch Manager, Lane still
lacked discretion over decisions lik e the billing rate, a nd was still subject to the 100-point system
that told her how to allocate her time. Id. at 82, 110 (Page ID #1569, 1575). Plaintiffs largely did not advise management, and none of them had any input about the policies, formulas, or procedures they were required to follow. Cons idering these three factors as well as the other
enumerated factors that determine whether an employee exercises disc retion and independent judgment, see 29 C.F.R. § 541.202(b), I conclude that Pl aintiffs’ matchmaking duties fall outside the administrative exemption.
The Department of Labor’s Wage and H our Division (WHD) letter about Staffing Managers further convinces me that Plainti ffs’ matchmaking duties do not fall within the administrative exemption. See U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter, 2005 WL 3308616, at *1 (Oct. 25, 2005) [hereinafter WHD Letter]. In concluding that certain Staffing Mangers fall within the administrativ e exemption, the WHD Letter notes that the Staffing Managers discussed in the letter “work under very li ttle supervision” and “make decisions and accomplish their tasks without prior approval.” Id. By contrast, Plaintiffs worked within a 100-point system that told them whic h tasks to perform in a given week, from the number of phone calls to make to the number of candidates to pla ce in jobs. R. 67-6 (Perry Dep. at 66) (Page ID #1518).
The Staffing Managers discussed in the letter “c ontinue[d] to supervise the services of the employee” “[o]nce the employee [w as] placed” with a client, and they had “full authority to discipline, fire, promote and assi gn to various tasks the employees they supervise.” WHD Letter at *1. Here, however, although Pl aintiffs communicated with co mpanies and employees after making a placement, they did not supervise the em ployees. They were intermediaries between companies and new employees, rath er than supervisors. R. 67- 6 (Perry Dep. at 160–61) (Page ID #1538).
The Staffing Managers discussed in the letter “decide[d] if advertising for the position is needed to find certain candidates” and “negotiate[d] the costs of such placement.” WHD LetterNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 37

at *1. Here, however, Plaintiffs advertised for jobs at predetermined websites that they accessed through Randstad’s portal. R. 67-6 (Perry Dep. at 132–34) (Page ID #1532–33).
Moreover, the letter specifical ly distinguishes Staffing Managers from “nonexempt . . . personnel clerks who simply scr een applicants to obtain data regarding qualifications and to identify those who do not meet the minimum requi red standards.” WHD Letter at *3 (citing 29 C.F.R. § 541.203(e)). This desc ription of personnel clerks is much closer to the duties of
Plaintiffs than the descri ption of Staffing Managers.
The majority acknowledges the differences be tween the Staffing Managers discussed in the WHD Letter and Plaintiffs’ positions, and evensays that the differences are significant enough that Randstad could not have relied in good faith on the WHD Letter. In my view, the differences are so significant that the WHD Le tter makes clear that Plaintiffs’ matchmaking duties fall outside of the administrative exemption.
Therefore, I disagree with the court that Pl aintiffs’ matchmaking duties fall within the FLSA’s administrative exemption. I would reverse the district court’s judg ment. Therefore, as to the part of this court’s judgment affirming the district court’s gran t of summary judgment, I respectfully dissent.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 38

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ SUTTON, Circuit Judge, concurring in part and dissenting in part. I agree with the court that the plaintiffs’ match-making duties fall wi thin the administrative exemption, but I cannot agree that their sale s duties do not.
The plaintiffs’ own testimony demonstrates that they exercised consid erable discretion in marketing Randstad’s services within their assigned territories. Perry testified that, as a staffing consultant, she had to identify pr ospective new customers, classi fy those prospects as top or secondary priorities, and select networking events to attend. Perry also selected prospective
clients to take out to m eals, approximately “three times a month.” R. 67-6 at 14. When marketing to existing clients, Perry would show them the resumes of job candidates she thought might have “potential for a client” based on her knowledge of that client’s needs. Id. at 10. The objective of all this on-your-own sales activity wa s to generate 1.5 new clients, and to check in with 6 existing clients, each month. Dooling pr ovided fewer details about her sales duties, but her description of the jo b parallels Perry’s.
On these facts, the staffing consultants’ sale s duties “include[d] the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(3).
Case law shows as much. In Smith v. Johnson & Johnson , the Third Circuit held that a pharmaceutical sales representative fell within the administrative exemption. 593 F.3d 280, 285 (3d Cir. 2010). Johnson & Johnson gave Smith a “target list” of doc tors in her assigned territory and required her to complete ten visits per day. Id. at 282. The list also identified “highpriority” doctors, and Smith coul d choose to visit these doctors more often th an the others. She received a budget for those visits, which she could use to take doc tors to lunch or to put on
seminars. Id. Because Smith decided for herself how to woo those high-priority customers, the Third Circuit determined that Smith’s position required her to use disc retion and independent judgment to “form a strategic plan designe d to maximize sales in her territory.” Id. at 285.No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 39

The Seventh Circuit followed suit in Schaefer-LaRose v. Eli Lilly & Co. , 679 F.3d 560 (7th Cir. 2012). The pharmaceutical sales represen tatives in that case received “specific call plans identifying the physicians to be visited and the degree of fr equency or priority category for each physician,” but nonetheless applied “strateg ic analysis to their work, choosing to see physicians not on their call plan s or non-physicians who may infl uence prescribing patterns.” Id. at 581; see also Reich v. John Alden Life Ins. Co. , 126 F.3d 1, 13–14 (1st Ci r. 1997) (holding that insurance marketing representatives exerci sed discretion and independent judgment).
With respect, I am not persuaded by the court’s attempt to distinguish these cases. The court points to the nature of the commodities being sold rather than how employees convinced clients to buy them. Randstad’s employees, the c ourt says, sold talent, not complex prescription drugs in a highly regulated environment. But which way does that cut? For the pharmaceutical sales representative, there may be a correct (if complicated) answer to how a drug dissipates in the body after a subcutaneous injection. Bu t for Randstad’s employees, there often will not be a scientific answer to whether a particular candidate meets a client’s “intangible” staffing needs or is a good fit for that company’s “culture.” Answ ering the former question requires flash cards; answering the latter requires judgment.
The court suggests, alternatively, that Rands tad’s employees exercised less discretion because they were subjec t to greater supervision. If anything, the staffing c onsultants in this case
exercised more discretion because they identified and prioritized prospective clients on their own, while the pharmaceutical representatives received prioriti zed lists of doctors from their employers. For that reason, Randstad’s staffing c onsultants would still be exempt even under the one opinion coming to a contrary conclusion on pharmaceutical sales representatives. See In re Novartis Wage & Hour Litig. , 611 F.3d 141, 157 (2d Cir. 2010), abrogated on other grounds by Christopher v. SmithKline Beecham Corp. , 567 U.S. 142 (2012).
That the staffing consultants considered crit eria and followed timetables set by Randstad
does not eliminate discretion from this work. Most employers se t business objectives and direct employees to perform certain tasks as part of a job. But that says nothing about how an employee goes about achieving those obj ectives or performing those tasks. The plaintiffs
considered Randstad’s criteria and followed its scheduling requirements when matching jobNo. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 40

candidates with clients, but thatdoes not make those actions any less discretionary. The staffing consultants made strategic sa les decisions on their own, without interference from their managers, even if those managers sometimes told them how to divide their time between sales and recruiting.
It’s also true that the staffing consultants performed a number of non-discretionary tasks as part of their sales duties, such as making cold calls, writin g personal notes, and knocking on businesses’ doors. But all administrative pos itions include some required legwork. The pharmaceutical representatives spent substantial time driving and filling out paperwork, see Smith , 593 F.3d at 283, but theyqualified for the administrative exemption because that more menial work served the “strategic [sales] plan” they developed using thei r independent judgment,
id. at 285. So too here.
For these reasons, I respectfully conc ur in part and dissent in part.