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 

JUDITH PERRY; ERIN LANE; AIMEE DOOLING, 

Plaintiffs-Appellants, 

v. 

RANDSTAD GENERAL PARTNER (US) LLC, 

Defendant-Appellee. 

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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. Riley, SEYFARTH SHAW LLP, Chicago, Illinois, for Appellee. ON 

BRIEF: Jordan M. Lewis, KELLEY/UUSTAL, PLC, Fort Lauderdale, Florida, 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 the court in which MOORE and SUTTON, JJ., 

joined in part. MOORE, J. (pp. 34–37), delivered a separate opinion concurring in part and 

dissenting from the court’s opinion regarding matchmaking duties. SUTTON, J. (pp. 38–40), 

delivered a separate opinion concurring in part and dissenting from the court’s opinion regarding 

sales duties. 

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

_________________ 

OPINION 

_________________ 

HELENE N. WHITE, Circuit Judge. In this putative 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 temporary workers (talent) and hires them out 

to other companies (clients). Plaintiffs were in-house Randstad employees (not temporary 

workers hired out) in the company’s Troy, Michigan, office. Each Plaintiff held multiple 

positions over the course of her employment with Randstad, but Plaintiffs’ responsibilities 

generally included marketing and selling Randstad’s services; recruiting and evaluating workers 

and placing them with clients; overseeing those placements; and various administrative and 

clerical tasks. Randstad tracked Plaintiffs’ performance 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 one point for completing reference checks. Plaintiffs were 

required to accrue 100 points each week. Of those 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 who 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 contest 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 3

activities, their category quotas did not change simply because a contest was taking place. Thus, 

if a contest required an employee to perform tasks outside her regular duties, she might have to 

earn more than 100 points total in order to accrue 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 per 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, filed this suit in March 

2014. The one-count complaint seeks unpaid overtime and liquidated damages under the FLSA, 

attorneys’ fees, costs, and a declaratory judgment that Randstad’s practices are unlawful. 

Plaintiffs styled their complaint as a collective 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 2014, and the parties spent several months 

engaging in discovery. Subsequently, Plaintiffs filed a motion for conditional class certification, 

and Randstad filed a motion for summary judgment seeking the dismissal of all four named 

plaintiffs’ claims. After a joint hearing on both motions, the district court granted summary 

judgment to Randstad on the claims brought by Dooling, Lane, and Perry, but allowed 

Choudhury’s claims to proceed. Based on Plaintiffs’ own testimony, the court found that 

Dooling, Lane, and Perry exercised 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 because it relied, reasonably and in good 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 plaintiffs’. 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 for 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 Randstad used the WPI to compare and evaluate employees, and 

created a triable fact issue regarding how much discretion Plaintiffs had. The district court 

denied the motion, concluding that ranking employees based on how many points they earn “is 

not inconsistent with those employees using independent 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 erred both in finding Randstad eligible for the goodfaith-reliance defense and in finding the FLSA’s administrative exemption applicable.2, 3

A. Standard of Review 

We review the district court’s decision granting summary judgment de novo. Foster v. 

Nationwide Mut. Ins. Co., 710 F.3d 640, 643 (6th Cir. 2013) (citations omitted). “Summary 

judgment is appropriate if, examining the record and drawing all inferences in a light most 

favorable to the non-moving party, there is no genuine issue as to any material fact and the 

moving party is entitled 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 arguments 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 those 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 because 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 define 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 regulation provided that an 

“employee employed in a bona fide administrative capacity” is one who is: 

(1) Compensated . . . at a rate of not less than $455 per week . . . ; 

(2) Whose primary duty is the performance of office or non-manual work directly 

related to the management or general business operations of the employer or the 

employer’s customers; and 

(3) Whose primary duty includes the exercise 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 bears 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 weekly 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 the DOL from implementing or enforcing 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 that the first two elements are met. Further, Plaintiffs do not 

argue that their duties did not involve “matters of significance.” Thus, the only issue is whether 

Plaintiffs’ “primary dut[ies] include[d] the exercise of discretion and independent judgment.” 

29 C.F.R. § 541.200(a)(3). 

“In general, the exercise of discretion and independent judgment involves the comparison 

and the evaluation of possible courses of conduct, and acting or making a decision after the 

various possibilities have been considered.” 29 C.F.R. § 541.202(a). Whether a particular 

employee exercises discretion and independent judgment must be determined “in the light of all 

the facts involved in the particular employment situation in which the question arises.” Id.

§ 541.202(b). 

Additionally, “[t]he exercise of discretion and independent judgment implies that the 

employee has authority to make an independent choice, free from immediate direction or 

supervision. However, employees can exercise discretion and independent judgment even if 

their decisions or recommendations are reviewed at a higher level.” 29 C.F.R. § 541.202(c). 

On the other hand, “[t]he exercise of discretion and independent judgment must be more than the 

use of skill in applying well-established techniques, procedures or specific standards described in 

manuals or other sources.” 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. Determination 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 job 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 relationship 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 the 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 section requires that exempt employees spend 

more than 50 percent of their time performing exempt work. Employees who do 

not spend more than 50 percent of their time performing exempt duties may 

nonetheless meet the primary duty requirement if the other factors 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 addressed 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, personnel clerks who ‘screen’ applicants to 

obtain data regarding their minimum qualifications 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 regulatory provisions to staffing company 

employees, the WHD and the courts have considered the specific facts of each case and more 

often than not found that such employees exercise discretion and independent judgment. 

In Andrade v. Aerotek, Inc., the plaintiff’s job titles were, successively, “Recruiter,” 

“Recruiter II,” and “Account Recruiting Manager.” 700 F. Supp. 2d 738, 740–41 (D. Md. 2010). 

The key aspects of the plaintiff’s duties were: (i) “[s]he did not screen solely for minimum 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 8

qualifications, but often sent candidates to her Account Managers whose personalities made 

them a good fit, even when their qualifications were not as impressive as others;” (ii) she 

“negotiated overall pay, holiday pay and vacation pay;” (iii) she “managed the contract 

employees while on assignment, assessed and investigated 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 that “[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 discretion and independent 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 responsible for “implement[ing] important 

management policies and operating practices” and doing so “in a manner that would ensure that 

the medical professionals placed with the clients were capable of producing good medical 

services.” Id. For that reason, the court found that the plaintiff “exercised 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 statute 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 administrative exemption applied to an employee who 

recruited and placed nurses, but without analyzing 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) negotiating 
No. 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’ education, skills, and personality, not merely checking against 

minimal requirements; (iv) recommending workers to clients; (v) negotiating the wages paid to 

workers; (vi) supervising workers; and (vii) counseling and disciplining workers, including 

transfers and terminations, if necessary. Id. The Staffing Managers “work[ed] under very little 

supervision” and “ma[d]e decisions and accomplish[ed] their tasks without prior approval and 

with broad range of discretion.” Id. They also decided whether advertising was necessary to fill 

a position, “determine[d] where to place the advertisement,” 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 personnel clerks (not covered), and concluded that the 

Staffing Managers exercised the requisite discretion and independent judgment to qualify for the 

administrative exemption because it was their job to: “recruit; interview; hire and recommend 

placement of employees to particular assignments; manage the client’s temporary labor pool; 

provide advice on personnel issues; handle complaints; resolve 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 Consultant” placing salaried professional workers 

found to exercise requisite discretion 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 “other 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 individuals; (ii) determine whether a candidate’s background matched the 

client’s requirements based on both subjective and objective factors; and (iii) determine the 

candidate’s salary requirements. Id. at *3. The plaintiff would then “provide the resumes of 

qualified candidates to his account manager,” who would “decide whether to present those 

candidates to the client.” Id. If the account manager did so, and the client was interested, the 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 10

plaintiff would schedule an interview 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 fired candidates, made direct recommendations to 

clients, or managed and disciplined candidates,” 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 that basis, the court distinguished the 2005 WHD Letter, Andrade, and 

other staffing-company cases, and 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, determining what an employee’s primary duties 

are and whether they are covered by the administrative 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 the record evidence relevant 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 call-center jobs. She testified: 

 6

Some documents in the record refer to Perry’s second 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 and 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 new 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 choose which tasks to perform on any given day. As 

she put it: 

[T]here was a choice of how you got your points, but you had to make sure that 

you had so many points in new business development, 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 important duty as a Staffing Consultant was “selling 

Randstad services.” (Id. at 1520.) To do so, Perry would attend networking events, contact 

existing clients, cold call prospective clients, and knock on doors. She sent out marketing 

materials to clients pursuant to Randstad policies. She chose for herself which networking 

events to attend. When it was time for a door-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 within a day or two of the date set 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 assisted 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 and 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 then interviewed and presented candidates to the 

client. This involved completing paperwork and sometimes arranging for drug tests. The client 
No. 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 down to 58%, but only with permission from 

management. Perry was encouraged to negotiate for a mark-up above 60%. 

As to recruiting, Perry’s responsibilities included “[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 sites, wrote job descriptions, and conducted interviews. Some 

of this outreach was dictated by Randstad, while some was up to Perry, such as talking to her 

own contacts. When writing a job description, Perry 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 the job provided by the client into 

Randstad’s required format. 

When recruiting candidates, Perry was required 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 use. Separately, Perry would sometimes actively 

recruit candidates with certain high-demand skills and then look for a client to place the 

candidate with. 

Once Perry identified a potential candidate for an open position, she would conduct a 

phone screening. Phone screenings generally followed 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 objective qualifications necessary for the job and to 

determine if the candidate displayed proper phone etiquette. Perry made the decision whether a 

candidate should receive an in-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 Perry 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 13

could add, but not subtract. Perry also determined 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 candidate 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 history, such as whether the candidate had previously worked in 

the client’s industry or for companies of a similar size. 

After a placement was made, Perry was responsible 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 stayed 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 problems were, what the issues were, if 

the client -- first of all, we would have to find out from the 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 challenges that they were having. And then 

I would get -- give them feedback 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 Consultant, she spent two hours or more per day 

“prospecting”—calling clients and prospective clients about potential openings. She spent about 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 14

an hour each day visiting clients and prospective clients in person. Perry spent about another 

4.5 hours per month taking clients and prospective clients 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 at her 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 previous 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 prospecting, but she did not say how much more, nor did she say 

whether that meant less time on other tasks, or whether she simply worked more hours in total. 

Perry may have been given a new position description (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 August 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 Duties – December 2011 to February 2012 

Lane began working for Today’s Office Professionals in April 2010 as a staffing 

consultant. Her duties were “[t]o recruit candidates for temporary, temp to hire, 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 representative for them.” (R. 36-6, PID 345.) Today’s Office 
No. 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 Randstad, 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 Acquisition Specialists to try to develop 

sales leads for other employees to follow 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 February 2012. She testified that “[i]t was 

the same duties that I was doing in concept before.” (R. 67-7, PID 1559–60.) She “was still 

recruiting and handling payroll, handling hiring paperwork[], interviewing, 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 based 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 the record), but testified that it did not match her actual 

responsibilities. She explained that “it does not include that you were required to process 

payroll, hire candidates and go through all of the hiring paperwork 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 sales responsibilities focused “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 had a need . . . we would get the business.” 

(Id. at 1562.) 

When one of Lane’s clients needed to fill a position, the client would either contact her 

directly or via a Randstad database. If the position was highly-paid or not an administrative job 

(e.g., warehouse laborer), Lane would refer it to another Randstad division. She “was . . . 

tracked on how many orders [she] brought in from current customers.” (Id. at 1565.) Lane 

wrote job descriptions independently, 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 collaboratively with other employees to determine the rate a worker 

would be paid. 

Lane’s description of the process for identifying candidates was similar to Perry’s (use of 

social media and internet resources, phone screenings, in-person interviews). However, Lane 

testified that it was her decision whether to post an available position through Randstad’s system 

or to search for candidates in other ways. Regarding recommending candidates, Lane testified 

that it was important to match candidates to clients: “If somebody 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 laid 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 that nature to try and make sure we put 

them in the best spot. Because many times 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 ultimate decision which candidate(s) to recommend to a client. 

She was also part of a team that decided how much to bill clients, but she 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 continued, Lane employed warnings and 

additional coaching. Normally, Lane had the authority to decide what intermediate steps to take. 

(Id. at 688–89.) Sometimes, “something happened that 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 advised clients on whether termination 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 client and the worker for all issues which might 

arise. 

Further, Lane continued to assist other Randstad in-house employees with new client or 

prospective client visits, doing so about once per month. She would 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 requirement.” (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 had 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 regarding exactly how many hours, or what percentage of her time, 

Lane spent on particular tasks as an Account Manager. 

iii. Senior Account Manager Duties – August 2012 to February 2013 

Lane was elevated to Senior Account Manager in February 2013. Her responsibility for 

mentoring others increased, but otherwise her job duties did not change. There is no evidence in 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 18

the record regarding how much time Lane spent on her various duties as a Senior Account 

Manager. 

iv. Assistant Branch Manager Duties – 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 handling “any escalated issue that one of my staff could not handle internally 

or with a client or employee.” (Id.) Lane also had new reporting requirements, attended 

managers’ meetings and conference calls, and traveled quarterly to Randstad’s Chicago office. 

Additionally, she had increased responsibility for attending customer visits with the lessexperienced sales staff to support them. Although “[e]veryone in the branch reported directly to 

[Lane],” and she participated in performance reviews and made recommendations about hiring 

and firing, Lane did not have ultimate authority to hire or fire employees. (Id. at 1566–67.) 

Despite those new duties, Lane was still expected to earn her 100 points per week, and 

her individual performance metrics were “basically 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 quota 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 for 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 clients in her assigned territory that met Randstad’s 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 19

criteria. She used Randstad’s database of potential contacts, and also conducted internet research 

and did cold calls to add new prospective 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 meetings with prospective clients. 

If a prospective client was interested, Dooling would “send[] 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” based on the client’s requirements. (Id. at 1464.) Dooling 

usually prepared job orders together 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 just bullet-pointing out maybe the 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 interview with the client as well as the 

candidate. 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 communicated with candidates after 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 responsibilities 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 Senior Account Manager Duties – October 2012 to August 2013 

Dooling was shifted from Staffing Consultant 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 clients. 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 “relationship building” rather 

than cold calls. (Id. at 1468.) To that end, she sometimes took clients out for meals. Dooling 

also inspected new clients’ workspaces for safety. 

As an Account Manager, Dooling continued 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 whether 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 knowing 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 office to sit in on the client’s interview with a 

recommended candidate. 

Dooling also continued to monitor placements for success. She “would do roundtable 

check-in . . . it was about things going on, like whether people maybe were showing up late or 

their attire they were choosing 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 to 
No. 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 other 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 Dooling now also “did on-site meetings” with 

clients that had concerns about their relationship with Randstad, or about issues in the news such 

as the Affordable Care Act; sometimes Dooling 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 supervisors 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 whether any Randstad employees are not covered by the 

administrative exemption, Randstad’s counsel responded 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 her 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 Choudhury, a Talent Acquisition Specialist, was covered by the 

administrative exemption because she also 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 covers Lane’s time as a Talent Acquisition Specialist. 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 22

b. Account Manager/Senior Account Manager 

Lane testified that she had more mentoring responsibilities after being promoted from 

Account Manager to Senior Account Manager, but that her duties were otherwise unchanged. 

And Randstad’s brief to this court does not distinguish between the two positions. We therefore 

analyze them together. 

To determine whether Lane and Dooling exercised 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 factors identified by the DOL. See 29 C.F.R. § 541.700(a). 

With that in mind, we agree with the district court 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—as opposed to objective criteria such as years of experience or 

test scores, involves meaningful discretion and independent 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 descriptions, deciding which recruitment tools to use, 

negotiating how much to pay the worker and how much to bill the client (even without ultimate 

decision-making authority), and counseling workers 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 authority “to interpret[] or implement management 

policies or operating practices,” to “represent[] the company in handling complaints,” and “to 

make . . . independent choice[s], free from immediate direction or supervision” 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 tasks 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 more 
No. 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 evidence showing how much time Lane 

and Dooling spent on exempt tasks. And Lane and Dooling both performed basic recruiting 

tasks during their time as Account Managers, which Randstad acknowledged at oral argument 

are non-exempt. (Oral Arg. 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 that Lane and Dooling spent 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 because the plaintiff’s testimony created a factual 

dispute over whether he actually spent the majority of his time on exempt tasks). 

That does not mean the administrative exemption is inapplicable, however. See 

29 C.F.R. § 541.700(b). When asked at her deposition 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, matchmaking 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 control over all national accounts, wrote her own job 

descriptions, chose her own recruitment tools, made 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 Account Manager, Lane had “relative 

freedom from direct supervision,” which supports 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, who regularly reviewed her work plan for each day. And there is 

no evidence Dooling ever hired or fired a worker on her own authority, as opposed to in 

consultation with a client or supervisor. However, “[t]he fact that an employee’s decision may 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 24

be subject to review . . . does not mean that the employee is not exercising discretion and 

independent judgment.” 29 C.F.R. § 541.202(c).8

Thus, considering all of the relevant record evidence, we agree with the district court that 

Lane’s and Dooling’s primary duties as Account Managers involved the exercise of sufficient 

discretion and independent judgment such that the administrative 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 Perry’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 had 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 not 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 personalities 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 the 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 provide examples of employees who qualify for 

the exemption although they 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; determining 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 promoting 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 Managers, but generally with less independence and 

more supervision. As Perry testified, Staffing Consultants 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, Perry 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 clients. (R. 67-6, PID 1520.) To that end, she 

spent time reaching out to both existing and prospective clients. This involved sending out 

marketing materials according to Randstad policies, 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 Staffing Consultant’s sales responsibilities 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 “waive or deviate from established policies and 

procedures without prior approval.” Id. § 541.202(b). Nor is there evidence they “carrie[d] out 

major assignments” or “perform[ed] work that affect[ed] business operations 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 “exercised considerable discretion in marketing 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 26

Randstad’s services within their assigned territories.” (Op. of Sutton, 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 representatives. 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 administrative 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 pretty much the ability to work it the 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 independent judgment and discretion because the employer 

trained them extensively in disease processes, [the employer’s] own assigned 

products, and products manufactured by competitors; indeed they were tested in 

their substantive knowledge. The level of attention given to substantive education 

demonstrates that the company viewed these 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 representative to the community of practicing 

physicians. A significant amount of discretion is no doubt required to determine 

when the physician’s inquiry is sufficiently nuanced 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 physician in an intelligent conversation, is 

understandably not an effective representative to the professional community 

whose estimation of the company 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 charged 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, before visiting a particular physician, a sales 

representative would develop “a pre-call plan,” which could include reviewing the physician’s 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 27

prescribing practices, patient population, and similar information, to develop a strategy for a 

conversation with the physician that would induce the physician to prescribe 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-determined quotas. The record is clear that Plaintiffs were able 

to “run their territor[ies]” only as Randstad saw fit and did not have the authority to 

independently “develop a strategic plan” to effectuate their duties. 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 which 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 schedule prescribed by Randstad, and she could not 

choose to deviate from Randstad’s commands in any 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 “tightly regulated industry.” 679 F.3d at 562–63, 568 n.16 (alteration 

removed from first quotation). 

Turning to the question of the Staffing Consultants’ 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 recruiting and matchmaking duties. 

Based on the estimates of time spent on various tasks Perry offered during her deposition, she 

spent at least five hours per day on sales activities, perhaps more. The record is silent as to how 

much time Dooling or Perry spent on exempt matchmaking activities as opposed to non-exempt 

routine recruiting duties. Thus, as with Account 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 significant because factors other than time do not compel the 

conclusion that a Staffing Consultant’s “primary duty” was “the performance of exempt work.” 

29 C.F.R. § 541.202(a)-(b). As discussed above, Staffing Consultants had relatively little 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 28

freedom from direct supervision, and Randstad makes no attempt to advance its case based on 

“the relationship between [a Staffing Consultant]’s salary and the wages paid to other 

employees,” such as Talent Acquisition Specialists, “for the kind of nonexempt work performed 

by [Staffing Consultants].” Id. § 541.202(a). 

For those reasons, a reasonable trier of fact could find that Perry’s and Dooling’s primary 

duties during their time as Staffing Consultants were their non-exempt sales and routine 

recruiting tasks, not their exempt 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 district 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 employees who managed a 

branch office were covered, and stated that Plaintiffs were “not pressing” the assertion that 

Assistant Branch Managers fell outside the exemption. (Oral Arg. at 2:08.) We take that as a 

concession that Lane was covered by the administrative 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 concluding that Lane’s 

responsibilities as an Assistant Branch Manager—which included supervising everyone other 

than the branch manager, counseling Randstad’s internal employees, participating in 

performance reviews, dealing with problems her subordinates could not resolve, and at least 

some exempt matchmaking duties, consisted 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 Consultant, we turn to the applicability 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 turned 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 Clinic 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 liability or 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 omission complained of was in good faith in 

conformity with and in reliance on any written administrative regulation, order, 

ruling, approval, or interpretation, of [the Administrator of the WHD] . . . with 

respect to the class of employers to which he belonged. Such a defense, if 

established, shall be a bar to the action or proceeding, notwithstanding that after 

such act or omission, such administrative 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 “provide[s] an affirmative defense to employers” who 

comply with its terms and the “accompanying regulations.” Fazekas, 204 F.3d at 679 n.3. The 

district court found the defense applicable here. We disagree. 

1. “In Conformity With” and “Good Faith” 

The operative administrative interpretation 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 Randstad actually relied on the 2005 WHD Letter. The 

 10The 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 Randstad 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 that the 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 student x-ray technicians were not “employees” for 

purposes of the FLSA, rather than another, more general section, that stated 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 Marshall does not speak directly 

to the meanings of “in conformity with” and “in good faith.” Further, “[i]n the years following 

Marshall, [we have] had little additional opportunity 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 opinion from within our circuit explained: 

The good faith requirement contains both subjective and objective components. 

The subjective component requires an employer to show that it had “honesty of 

intention and no knowledge of circumstances which ought to put him upon 

inquiry.” However, subjective good faith is not enough—the employer must also 

satisfy an objective test. In other words, “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 

 11The 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) (internal quotation marks and citations omitted). 

As to conformity, “[a]n employer cannot avail 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 faith 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 arguments on whether or to what extent Plaintiffs’ duties matched 

those described in the 2005 WHD Letter. In doing so, they conflate two separate questions. 

First, were the two sets of duties so similar that the 2005 WHD Letter “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 Randstad 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 questions 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 Randstad employees: Staffing Consultants; Staffing 

Managers; Account Managers; Senior Account Managers; and Assistant Branch Managers. And 

each letter cites the 2005 WHD Letter in support of the conclusion that the employees in 

question are covered by the administrative exemption. Further, James Ferguson, Randstad’s inhouse counsel, attested that he relied on the letters and the authorities cited therein, including the 

2005 WHD Letter, in classifying 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 Consultants/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 various tasks the employees they supervise[d].” 

2005 WHD Letter at *1 (emphasis added). In Randstad’s Troy office, Talent Acquisition 

Specialists and Staffing Consultants/Senior Staffing Consultants were involved in those 

decisions, and Staffing Consultants/Senior Staffing Consultants actively counseled 

underperforming employees, but they did not have the ultimate authority to decide to fire an 

employee. Also, the employees covered by the 2005 WHD Letter “work[ed] under very little 

supervision” and acted “without prior approval.” 2005 WHD 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 answer 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 not satisfy the “clear answer” requirement). 

Additionally, Randstad has not shown its reliance was in “good faith” as a matter of law 

because Randstad arguably had “knowledge of circumstances which ought to” have caused it to 

inquire further. See 29 C.F.R. § 790.15(a). A recurring theme in Passantino’s letters is that 

some Randstad employees will spend more time on sales activities than others, and that sales 

activities are typically not covered by the administrative exemption. Randstad also knew that its 

employees’ job duties “could vary significantly based on the clients 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 participation in “contests” 

sometimes required Plaintiffs to perform tasks outside of their usual responsibilities. Despite all 

this, Randstad classified its employees on a nationwide basis. At minimum, then, there is a 

factual question whether Randstad reasonably relied on the 2005 WHD Letter to classify 

Plaintiffs as FLSA-exempt without conducting a review 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 part because “there is 
No. 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’] primary job duties or whether 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 grant of summary judgment to 

Randstad as to: (1) Dooling’s claim arising out of her time as an Account Manager; (2) Lane’s 

claims arising out of her time as an Account Manager and Senior Account Manager; and 

(3) Lane’s claim arising out of her time an Assistant Branch Manager. We REVERSE the 

district court’s grant of summary judgment as to: (1) Lane’s claim 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

 

 12We note that the district court did not address Randstad’s statute of limitations arguments below, and 

Randstad made no statute of limitations arguments on appeal. We therefore express no opinion on the issue. 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 34

______________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART 

______________________________________________________ 

KAREN NELSON MOORE, Circuit 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 independent judgment with respect to matters of significance.” 

29 C.F.R. § 541.202(a). “The phrase ‘discretion and independent judgment’ must be applied in 

the light of all the facts involved in the particular employment situation in which the question 

arises.” 29 C.F.R. § 541.202(b). Mindful that exemptions 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 respect 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 discretion and independent judgment, 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 “whether 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 and procedures without 

prior approval”; and “whether the employee provides consultation or expert advice to 

management.” 29 C.F.R. § 541.202(b). Analyzing these three factors, I conclude 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 constrained 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 performed company-assigned matchmaking tasks each week, rather than 

deciding on their own how to find candidates and place them in appropriate jobs. 

Beyond lacking authority to decide which tasks 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 assigned 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 (Dooling 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 decisions were based on 

predetermined criteria). Randstad also established 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) (Page ID #1576). Plaintiffs did not interpret or implement, 

let alone formulate, Randstad policies; 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, Randstad had a standard billing rate of 60%. R. 67-6 (Perry Dep. 

at 119) (Page ID #1529). Plaintiffs could not agree to charge under 60% without prior approval 

from their supervisors. Explaining the process of setting the billing 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 Randstad policies, either. 

Third, with one exception, Plaintiffs did not provide advice to management. Randstad 

gave Plaintiffs formulas for how to advertise job openings, interview candidates, 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 capacity, Lane could “make recommendations regarding 
No. 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 Assistant Branch Manager, Lane still 

lacked discretion over decisions like the billing rate, and 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. Considering these three factors as well as the other 

enumerated factors that determine whether an employee exercises discretion and independent 

judgment, see 29 C.F.R. § 541.202(b), I conclude that Plaintiffs’ matchmaking duties fall outside 

the administrative exemption. 

The Department of Labor’s Wage and Hour Division (WHD) letter about Staffing 

Managers further convinces me that Plaintiffs’ 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 administrative exemption, the WHD Letter notes that the 

Staffing Managers discussed in the letter “work under very little supervision” and “make 

decisions and accomplish their tasks without prior approval.” Id. By contrast, Plaintiffs worked 

within a 100-point system that told them which tasks to perform in a given week, from the 

number of phone calls to make to the number of candidates to place in jobs. R. 67-6 (Perry Dep. 

at 66) (Page ID #1518). 

The Staffing Managers discussed in the letter “continue[d] to supervise the services of the 

employee” “[o]nce the employee [was] placed” with a client, and they had “full authority to 

discipline, fire, promote and assign to various tasks the employees they supervise.” WHD Letter 

at *1. Here, however, although Plaintiffs communicated with companies and employees after 

making a placement, they did not supervise the employees. They were intermediaries between 

companies and new employees, rather 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 Letter 
No. 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 specifically distinguishes Staffing Managers from “nonexempt . . . 

personnel clerks who simply screen applicants to obtain data regarding qualifications and to 

identify those who do not meet the minimum required standards.” WHD Letter at *3 (citing 29 

C.F.R. § 541.203(e)). This description of personnel clerks is much closer to the duties of 

Plaintiffs than the description of Staffing Managers. 

The majority acknowledges the differences between the Staffing Managers discussed in 

the WHD Letter and Plaintiffs’ positions, and even says 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 Letter makes clear that Plaintiffs’ matchmaking 

duties fall outside of the administrative exemption. 

Therefore, I disagree with the court that Plaintiffs’ matchmaking duties fall within the 

FLSA’s administrative exemption. I would reverse the district court’s judgment. Therefore, as 

to the part of this court’s judgment affirming the district court’s grant of summary judgment, 

I respectfully dissent. 

 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 38

______________________________________________________ 

CONCURRING IN PART AND 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 within the administrative exemption, but I cannot 

agree that their sales duties do not. 

The plaintiffs’ own testimony demonstrates that they exercised considerable discretion in 

marketing Randstad’s services within their assigned territories. Perry testified that, as a staffing 

consultant, she had to identify prospective new customers, classify those prospects as top or 

secondary priorities, and select networking events to attend. Perry also selected prospective 

clients to take out to meals, 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 was to generate 1.5 new clients, and to check in 

with 6 existing clients, each month. Dooling provided fewer details about her sales duties, but 

her description of the job parallels Perry’s. 

On these facts, the staffing consultants’ sales 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 doctors in her assigned territory 

and required her to complete ten visits per day. Id. at 282. The list also identified “highpriority” doctors, and Smith could choose to visit these doctors more often than the others. She 

received a budget for those visits, which she could use to take doctors 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 discretion and independent 

judgment to “form a strategic plan designed 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 representatives in that case received “specific call 

plans identifying the physicians to be visited and the degree of frequency or priority category for 

each physician,” but nonetheless applied “strategic analysis to their work, choosing to see 

physicians not on their call plans or non-physicians who may influence prescribing patterns.” Id. 

at 581; see also Reich v. John Alden Life Ins. Co., 126 F.3d 1, 13–14 (1st Cir. 1997) (holding that 

insurance marketing representatives exercised 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 court 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. But 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.” Answering the former question requires flash cards; 

answering the latter requires judgment. 

The court suggests, alternatively, that Randstad’s employees exercised less discretion 

because they were subject to greater supervision. If anything, the staffing consultants in this case 

exercised more discretion because they identified and prioritized prospective clients on their 

own, while the pharmaceutical representatives received prioritized lists of doctors from their 

employers. For that reason, Randstad’s staffing consultants 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 criteria and followed timetables set by Randstad 

does not eliminate discretion from this work. Most employers set 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 objectives or performing those tasks. The plaintiffs 

considered Randstad’s criteria and followed its scheduling requirements when matching job 
No. 16-1010 Perry, et al. v. Randstad Gen. Partner Page 40

candidates with clients, but that does not make those actions any less discretionary. The staffing 

consultants made strategic sales 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, writing personal notes, and knocking on 

businesses’ doors. But all administrative positions include some required legwork. The 

pharmaceutical representatives spent substantial time driving and filling out paperwork, see 

Smith, 593 F.3d at 283, but they qualified for the administrative exemption because that more 

menial work served the “strategic [sales] plan” they developed using their independent judgment, 

id. at 285. So too here. 

For these reasons, I respectfully concur in part and dissent in part.