Exhibit G 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 1 of 21 PageID #:2845
 

In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1944 

SUSIE BIGGER,

Plaintiff-Appellee, 

v.

FACEBOOK, INC., 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 17-cv-7753 — Harry D. Leinenweber, Judge. 

____________________ 

ARGUED SEPTEMBER 27, 2019 — DECIDED JANUARY 24, 2020 

____________________ 

Before WOOD, Chief Judge, and KANNE and BARRETT, Circuit Judges. 

KANNE, Circuit Judge. The Fair Labor Standards Act of 

1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”), requires 

employers to pay overtime wages to certain employees, see id.

§§ 207(a), 213. For enforcement, the Act allows employees to 

sue their employer for damages and to bring the action on behalf of themselves and other “similarly situated” employees, 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 2 of 21 PageID #:2846
2 No. 19-1944 

id. § 216(b), who may join the so-called “collective action.”1

The court overseeing the action has discretion to authorize the 

sending of notice to potential plaintiffs, informing them of the 

opportunity to opt in. Hoffmann–La Roche Inc. v. Sperling, 493 

U.S. 165, 170–71 (1989). But the court must respect judicial 

neutrality and avoid even the appearance of endorsing the action’s merits. Id. at 174. 

This case presents the question whether a court may authorize notice to individuals who allegedly entered mutual 

arbitration agreements, waiving their right to join the action. 

Facebook employee Susie Bigger sued Facebook for violations of the FLSA overtime-pay requirements. She brought 

the action on behalf of herself and all other similarly situated 

employees. The district court authorized notice of the action 

to be sent to the entire group of employees Bigger proposed. 

Facebook argued this authorization was improper because 

many of the proposed notice recipients had entered arbitration agreements precluding them from joining the action. Facebook also argued the court’s authorization of notice was improper because Facebook is entitled to summary judgment. 

We hold that when a defendant opposing the issuance of 

notice alleges that proposed recipients entered arbitration 

agreements waiving the right to participate in the action, a 

court may authorize notice to those individuals unless (1) no 

plaintiff contests the existence or validity of the alleged 

1 Collective actions are similar to class actions governed by Federal 

Rule of Civil Procedure 23. But a principal distinction is that members of 

a collective must opt in to the action to be bound by the judgment or settlement, whereas members of a Rule-23 class must opt out not to be bound. 

See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771–72 (7th Cir. 2013). 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 3 of 21 PageID #:2847
No. 19-1944 3

arbitration agreements, or (2) after the court allows discovery 

on the alleged agreements’ existence and validity, the defendant establishes by a preponderance of the evidence the existence of a valid arbitration agreement for each employee it 

seeks to exclude from receiving notice. 

Because the district court here did not apply this framework, we vacate the court’s order issuing notice and we remand for the court to apply the proper standard. We also affirm the court’s denial of summary judgment to Facebook. 

I. BACKGROUND

Facebook generates revenue by selling advertisements on 

its electronic platforms. To help clients navigate various advertising options—which Facebook calls “solutions” to client 

objectives—Facebook employs “sales teams, or ‘pods.’” Sales 

pods are made up of managers; “Client Partners”; and “Client 

Solutions Managers,” or “CSMs.” 

Susie Bigger was a CSM. The CSM role was created by 

merging two positions: one focusing on “analytical work” 

(looking at data to make advertising recommendations), and 

the other focusing on “upselling” (increasing advertisement 

sales to existing clients). 

Facebook categorizes all CSMs into numbered “Individual 

Contributor,” or “IC,” levels based on the experience and expectations involved in each CSM position. CSMs in levels 1 

and 2 are deemed eligible for overtime pay, while CSMs in 

levels 3 and higher are deemed overtime ineligible. 

Bigger was a level-4 CSM; when she worked over 40 hours 

in a week, she did not receive overtime compensation. In 2017, 

she brought an action against Facebook on behalf of herself 

and all other similarly situated employees. She claimed that, 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 4 of 21 PageID #:2848
4 No. 19-1944 

by not paying them overtime wages, Facebook violated the 

FLSA.2 

After Bigger and Facebook engaged in some (but not complete) discovery, Bigger moved to conditionally certify a collective action, and asked the court to authorize notice to all 

members of the putative collective: “[a]ll individuals who 

were employed by Facebook as Client Solutions Managers at 

level IC-3 or IC-4 at any location in the United States” during 

the period three years before conditional certification to the 

present. The notice would inform recipients about the action 

and opportunity to opt in. 

Facebook responded in two ways. First, it moved for summary judgment, arguing that Bigger—the only plaintiff at this 

point—was exempt from the FLSA overtime-pay requirements. Second, it argued that the authorization of notice was 

improper because most proposed recipients had entered mutual arbitration agreements making them ineligible to join the 

action. 

In support of its opposition to the notice, Facebook supplied the district court with two templates of arbitration 

agreements: copies of arbitration-agreement forms that Facebook had given to two employees, whose names and signatures were redacted. Facebook also gave estimates about how 

many proposed notice recipients had signed comparable 

2 Bigger also brought a state-law claim against Facebook, alleging violations of the Illinois Minimum Wage Law, 820 ILCS § 105/1 et seq. That 

claim is not part of this appeal. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 5 of 21 PageID #:2849
No. 19-1944 5

forms.3 But Facebook did not supply the actual documents 

that proposed recipients allegedly executed. Nor did Facebook otherwise show which proposed notice recipients entered mutual arbitration agreements. 

The district court denied Facebook’s motion for summary 

judgment, and—conditionally certifying the proposed collective—authorized notice to be sent to all employees in the 

group Bigger proposed. Facebook sought and was granted interlocutory appeal of these decisions.4 See 28 U.S.C. § 1292(b). 

II. ANALYSIS

We begin with Facebook’s argument that the district court 

abused its discretion by authorizing notice to all members of 

the proposed collective. We then turn to Facebook’s argument 

that the court improperly denied Facebook summary judgment. 

A. Authorization of Notice 

We review a district court’s management of a collective action—including the facilitation of notice—for abuse of 

3 Facebook initially estimated that “[a]t least 252 CSMs employed at 

IC levels 3 or 4” between October 2014 and December 2018 had entered an 

arbitration agreement. This, Facebook said, amounted to “more than half 

of the CSMs employed at IC levels 3 or 4” during that timeframe. Four 

months later, Facebook updated its estimate. It said that “at least 336 of 

the 428 CSMs employed at IC levels 3 or 4” between November 29, 2015 

and April 8, 2019 had entered an arbitration agreement, amounting to “approximately 78% of the CSMs employed at IC levels 3 or 4” during that 

period. 

4 The trial court also denied Bigger’s requests to post the notice in Facebook’s offices and to send a reminder notice. Those decisions are not 

part of this appeal. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 6 of 21 PageID #:2850
6 No. 19-1944 

discretion. See Hoffmann–La Roche, 493 U.S. at 169; Alvarez v. 

City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010). In doing so, 

we review de novo legal conclusions underlying the court’s decision. See Weil v. Metal Techs., Inc., 925 F.3d 352, 357 (7th Cir. 

2019). 

Arguing that the court abused its discretion by authorizing notice to the proposed group of employees, Facebook 

gives the following reasoning: Most employees in the group 

entered arbitration agreements waiving their right to participate in the action. Those agreements make the employees 

who entered them neither “potential plaintiffs” nor “similarly 

situated” to Bigger. Thus, the notice would misinform most 

recipients—by indicating that they may join the action when, 

in truth, they may not—and the notice would unfairly amplify settlement pressure. 

Bigger responds that all employees in the proposed collective are “potential plaintiffs” because they, along with Bigger, 

“were victims of a common policy or plan that violated the 

law.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) 

(quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 

(S.D.N.Y. 1997)). She points out that the district court can determine later, after more discovery, whether anyone who opts 

in is not “similarly situated” to Bigger. She continues that the 

notice would not misinform recipients, because it says, “[i]f 

you file an ‘Opt-In Consent Form,’ your continued right to 

participate in this suit may depend upon a later decision by 

the Court that you and the Named Plaintiff are actually ‘similarly situated’ in accordance with federal law.” Besides, she 

adds, Facebook did not propose changes to the notice. 

The question we face is whether a court may authorize notice to individuals who, according to the defendant, entered 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 7 of 21 PageID #:2851
No. 19-1944 7

valid arbitration agreements waiving their right to join the action. In addressing this issue of first impression for our court, 

we find guidance in the goals and dangers of collective actions 

and in the neutrality a trial court must maintain when facilitating notice to potential plaintiffs. 

The twin goals of collective actions are enforcement and 

efficiency: enforcement of the FLSA, by preventing violations 

of the overtime-pay requirements and by enabling employees 

to pool resources when seeking redress for violations; and efficiency in the resolution of disputes, by resolving in a single 

action common issues arising from the same alleged illegal 

activity. Cf. Hoffmann–La Roche, 493 U.S. at 170–71. The FLSA 

invokes these goals by explicitly permitting collective actions 

in which “similarly situated” employees may join a lawsuit 

against their employer.5 29 U.S.C. § 216(b). 

But collective actions also present dangers. Hoffmann–La 

Roche, 493 U.S. at 171. One is the opportunity for abuse of the 

collective-action device: plaintiffs may wield the collective-action format for settlement leverage. See id. Generally speaking, 

expanding the litigation with additional plaintiffs increases 

pressure to settle, no matter the action’s merits. A related danger is that notice giving, in certain circumstances, may become indistinguishable from the solicitation of claims—which 

5 Some courts, including the district court here, use a two-stage procedure for determining whether individuals are “similarly situated” to the 

named plaintiff(s). See, e.g., Smallwood v. Illinois Bell Tel. Co., 710 F. Supp. 

2d 746, 750 (N.D. Ill. 2010). See generally Thiessen v. Gen. Elec. Capital Corp., 

267 F.3d 1095, 1102–03 (10th Cir. 2001) (describing three approaches). We 

have not required this two-stage approach, nor do we do so now. Our focus is limited to the scope of a court’s discretion in facilitating notice of an 

FLSA action to certain employees. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 8 of 21 PageID #:2852
8 No. 19-1944 

is a process “distinguishable in form and function” from court 

intervention in the notice process for case management purposes. Id. at 174. 

To counter these dangers, trial courts have discretion to 

monitor the preparation and distribution of notice to “potential plaintiffs,” id. at 169, who may opt in to the action. Id. at 

171. But courts “must be scrupulous to respect judicial neutrality,” avoiding even the appearance of endorsing the action’s merits. Id. at 174. 

Given these considerations, we conclude that a court may 

not authorize notice to individuals whom the court has been 

shown entered mutual arbitration agreements waiving their 

right to join the action. And the court must give the defendant 

an opportunity to make that showing. 

The goal of efficiency neither favors nor disfavors this result. As a general matter, it may be efficient to first send notice 

to a group of people and then weed out those who opt in but 

are in fact ineligible to join. But in the specific situation where 

the court has been shown certain individuals may not join the 

action, it may be inefficient to send notice to those people—

because the notice may serve only to prompt futile attempts 

at joinder or the assertion of claims outside the collective proceeding. 

Even if efficiency favors sending notice to individuals who 

entered arbitration agreements, efficiency cannot override the 

court’s obligations to maintain neutrality and to shield 

against abuse of the collective-action device. 

These obligations become prominent when the employer 

alleges that proposed notice recipients entered arbitration 

agreements. This is because, if the defendant provides 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 9 of 21 PageID #:2853
No. 19-1944 9

proof—or is denied the opportunity to provide proof—that 

“arbitration employees” are among the proposed notice recipients, then sending notice to those individuals may at least 

appear to predominantly inflate settlement pressure instead 

of inform employees of an action in which they can resolve 

common issues. Also, in that situation, the risk is high that the 

notice will appear to facilitate abuse of the collective-action 

device and thus place a judicial thumb on the plaintiff’s side 

of the case. 

For these reasons, when a defendant opposes the issuance 

of notice by asserting that proposed notice recipients entered 

mutual arbitration agreements, the trial court must take specific steps: 

First, the court must determine whether a plaintiff contests 

the defendant’s assertions about the existence of valid arbitration agreements entered by proposed notice recipients. 

If no plaintiff contests those assertions, then the court may 

not authorize notice to the employees whom the defendant 

alleges entered valid arbitration agreements. 

But if a plaintiff contests the defendant’s assertions, then—

before authorizing notice to the alleged “arbitration employees”—the court must permit the parties to submit additional 

evidence on the agreements’ existence and validity. The employer seeking to exclude employees from receiving notice 

has the burden to show, by a preponderance of the evidence, 

the existence of a valid arbitration agreement for each employee it seeks to exclude from receiving notice. Cf. In re 

JPMorgan Chase & Co., 916 F.3d 494, 502–03 (5th Cir. 2019). The 

court may not authorize notice to any employee whom the 

employer shows entered a valid arbitration agreement, unless 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 10 of 21 PageID #:2854
10 No. 19-1944 

the record reveals that nothing in the agreement would prohibit that employee from participating in the action.6 See id. at 

501. To be clear, if the employer does not prove that an employee entered a valid arbitration agreement, then the court 

may authorize notice to that employee—granted, of course, 

that the employee is otherwise an appropriate notice recipient. 

Importantly, requiring a defendant to show the existence 

and validity of an arbitration agreement for each employee it 

seeks to exclude from receiving notice does not run against 

the “liberal federal policy favoring arbitration agreements.” 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

24 (1983). Under that policy, “any doubts concerning the 

scope of arbitrable issues should be resolved in favor of arbitration,” id. at 24–25. The policy does not require courts to 

simply take an employer at its word when it says certain employees entered valid arbitration agreements. After all, determining whether a valid arbitration agreement exists is generally within the court’s authority. See Lamps Plus, Inc. v. Varela, 

139 S. Ct. 1407, 1416–17 (2019) (recognizing presumption that 

judges are authorized “to resolve certain ‘gateway’ questions, 

such as ‘whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause 

applies to a certain type of controversy” (quoting Green Tree 

Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003) (plurality opinion))); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 

(1995) (recognizing that, when deciding whether the parties 

6 Even without notice, employees who entered valid arbitration agreements may try opting in. If they do, the employer may move to compel 

arbitration to exclude those employees from the action. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 11 of 21 PageID #:2855
No. 19-1944 11

agreed to arbitrate, courts generally should apply ordinary 

state-law principles governing the formation of contracts). 

Because we only now provide this analytical framework, 

the parties could not navigate its demands. And the district 

court could not—and did not—apply the correct standard, resulting in an abuse of discretion. We therefore vacate the order authorizing notice, and remand for the district court to 

take the steps we’ve prescribed. Specifically, the court on remand should allow the parties to submit additional evidence 

on the existence of valid arbitration agreements between Facebook and proposed notice recipients.7 If Facebook proves 

that certain proposed recipients entered valid arbitration 

agreements waiving their right to join the action, or if Bigger 

does not contest that those employees entered such agreements, the court may not authorize notice to those employees. 

Although this resolves the parties’ disagreement over the 

court’s discretion to authorize notice in the face of alleged arbitration agreements, it does not entirely resolve this appeal. 

The reason is Facebook’s other argument—that, even if no 

proposed notice recipients entered arbitration agreements, 

notice should not be sent to any employees, because Facebook 

is entitled to summary judgment. Indeed, if Bigger, as the sole 

plaintiff, lacks a viable claim against Facebook, then the action 

cannot proceed. So, we determine next whether the district 

7 We note that, unlike the plaintiffs in the Fifth Circuit’s case, In re

JPMorgan Chase & Co., Bigger did not yield to Facebook’s assertions about 

the existence and validity of the alleged arbitration agreements. Cf. 916 

F.3d at 498 (observing that plaintiffs represented they did not intend to 

contest the existence, validity, or enforceability of arbitration agreements 

entered by proposed notice recipients). 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 12 of 21 PageID #:2856
12 No. 19-1944 

court erred by denying Facebook’s motion for summary judgment. 

B. Summary Judgment 

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). We 

review a district court’s denial of summary judgment de novo, 

viewing the facts in the light most favorable to the nonmovant—here, Bigger—and drawing all reasonable inferences in that party’s favor. See Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2012). 

Facebook contends that there are no genuine issues of fact 

material to whether Bigger is exempt from the FLSA overtime-pay requirements. 

The FLSA exempts many categories of employees from 

obligated overtime wages. See 29 U.S.C. § 213. These exemptions must be given a fair, not a narrow, reading. Encino Motocars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). 

The exemption Facebook relies on is the “administrative 

exemption,” which covers employees who are “employed in 

a bona fide ... administrative ... capacity.” 29 U.S.C. 

§ 213(a)(1). An agency regulation explains that this exemption 

applies to any employee: 

(1) Compensated on a salary or fee basis ... at a rate [not 

less than the amount specified by regulation] ...; 

(2) Whose primary duty is the performance of office or nonmanual work directly related to the management or 

general business operations of the employer or the employer’s customers; and 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 13 of 21 PageID #:2857
No. 19-1944 13

(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). Applying this regulation requires “a 

thorough, fact-intensive analysis of the employee’s employment duties and responsibilities.” Schaefer–LaRose v. Eli Lilly 

& Co., 679 F.3d 560, 572 (7th Cir. 2012). And the employer asserting that the exemption applies ordinarily must show that 

the employee’s work satisfies all three criteria. 

But another regulation provides a less rigorous alternative: if the employer shows that the employee is highly compensated—that is, receives total annual compensation exceeding an amount specified by regulation—then the employer 

need only additionally show that the employee “customarily 

and regularly performs any one or more of the exempt duties 

or responsibilities of an ... administrative ... employee.” 29 

C.F.R. § 541.601(a). The rationale for this highly-compensated-employee test is that “[a] high level of compensation is 

a strong indicator of an employee’s exempt status, thus eliminating the need for a detailed analysis of the employee’s job 

duties.” Id. § 541.601(c). 

The parties agree that Bigger was highly compensated, invoking the less stringent test. They also accept that “customarily and regularly” means “a frequency that must be greater 

than occasional but ... may be less than constant.” 29 C.F.R. 

§ 541.701. They dispute whether Bigger customarily and regularly performed administratively exempt duties, which are 

“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,” id. § 541.200(a)(2), 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 14 of 21 PageID #:2858
14 No. 19-1944 

and “the exercise of discretion and independent judgment 

with respect to matters of significance,” id. § 541.200(a)(3).8 

We agree with Bigger that factual issues remain concerning the extent to which she engaged in exempt duties. We’ll 

begin with the “directly related” variety of exempt administrative duties, then turn to the “discretion and independent 

judgment” kind. 

1. Duties “Directly Related to Management or General Business 

Operations” 

Agency regulations indicate that, for the “directly related” 

criterion to be satisfied, “an employee must perform work directly related to assisting with the running or servicing of the 

business, as distinguished, for example, from working on a 

manufacturing production line or selling a product in a retail 

or service establishment.” 29 C.F.R. § 541.201(a). 

The regulations provide a list of functional areas in which 

this kind of work is often performed. The list includes tax; finance; quality control; purchasing; advertising; marketing; research; human resources; public and government relations; 

and others. See 29 C.F.R. § 541.201(b). The regulations also say 

that “employees acting as advisers or consultants to their employer’s clients or customers (as tax experts or financial consultants, for example) may be exempt.” Id. § 541.201(c). 

Facebook argues that Bigger is exempt under the “directly 

related” standard because her work customarily and 

8 The parties do not challenge the relevant agency regulations’ validity or meaning, only their application. Because the regulations’ interpretation is not in question, our task here is simply to determine whether, applying the regulations, Bigger falls under the FLSA’s administrative exemption as a matter of law. Cf. Schaefer–LaRose, 679 F.3d at 572 n.20. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 15 of 21 PageID #:2859
No. 19-1944 15

regularly fell under functional areas listed above, such as advertising and marketing, and she served as a consultant to Facebook’s clients and as an intermediary between clients and 

Facebook’s internal teams. 

While Bigger did work in the advertising industry as a 

general matter, decisions from our court and a sister court underscore that whether an employee’s work meets the “directly 

related” standard depends on the precise nature of the employee’s work. Four cases, in particular, illustrate that 

whether a duty is exempt may turn on the enterprise’s core 

function—that is, the central revenue generator—and the employee’s involvement in it. For example, if the employer’s core 

function is the sale of certain products or services, then simply 

selling the product or service may not be directly related to 

the general business operations or management of the employer or its customers. 

To start, in Blanchar v. Standard Ins. Co., we determined 

that an insurance-company employee’s duties satisfied the 

“directly related” standard. 736 F.3d 753 (7th Cir. 2013). We 

reasoned that the employee “did not directly engage in the 

sales” of any insurance plans. Id. at 757; see also 29 C.F.R. 

§ 541.203(b). Instead, the employee “merely assisted salespeople with those sales”—for example, by training salespeople 

and educating firms about insurance plans. Blanchar, 736 F.3d 

at 757. 

Similarly, in Schaefer–LaRose v. Eli Lilly & Co., we determined that pharmaceutical sales representatives’ duties satisfied the “directly related” standard. 679 F.3d at 574–77. We 

reasoned that the core function of the employer was “the development and production of pharmaceutical products”; that 

the representatives’ work supported that core function but 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 16 of 21 PageID #:2860
16 No. 19-1944 

was distinct from it; and that the representatives did not make 

individual sales. Id. at 574–77. 

In the same vein, in Verkuilen v. MediaBank, LLC, we identified an employee who was “a picture perfect example of a 

worker for whom the Act’s overtime provision is not intended”: an account manager for a software-development 

company. 646 F.3d 979, 981–82 (7th Cir. 2011). As the intermediary between the employer’s software developers and the 

client advertising agencies, the account manager learned the 

customers’ businesses, translated customers’ needs into specifications that the developers would implement in the software, trained customers’ staff how to use the software, and 

showed customers how to resolve issues with the software. 

Id. Critically, the account manager was “not a salesman” for 

an electronics store, nor was she a technician fielding customers’ phone calls. Id. at 982. 

Finally, consistent with these decisions, the Second Circuit 

in Reiseck v. Universal Communications of Miami, Inc. determined that an employee of a free-magazine publisher performed work that did not satisfy the “directly related” standard. 591 F.3d 101 (2d Cir. 2010), abrogated in part by Encino, 138 

S. Ct. at 1142; see Schaefer–LaRose, 679 F.3d at 575 n.23 (distinguishing Reiseck). There, the sale of advertising space was the 

company’s crucial revenue generator. Id. at 106. And the employee’s duty “to sell specific advertising space to clients” did 

not qualify as administratively-exempt work. Id. at 107. 

These cases highlight two related principles driving our 

decision that summary judgment is inappropriate here. First, 

while duties supporting an enterprise’s core function may 

qualify as an administratively exempt duty, actually engaging in that core function may not. And second, for us to decide 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 17 of 21 PageID #:2861
No. 19-1944 17

as a matter of law that an employee customarily and regularly 

performed duties “directly related to management or general 

business operations,” 29 C.F.R. § 541.201(b), we need a clear 

factual picture of those duties, including how they relate to 

the employer’s and customers’ enterprises.9 

Here, the record does not present a clear picture of Bigger’s duties and how they relate to Facebook’s and its customers’ enterprises. 

Facebook’s core function—that is, its primary revenue 

generator—is the sale of advertisements on its electronic platforms. Although Bigger regularly presented advertisement 

“solutions” to clients, the evidence in the record does not establish whether, outside of making direct sales, Bigger’s work 

customarily and regularly supported Facebook’s general 

sales efforts or its customers’ general business operations or 

management—for example, by performing analytical consultations with customers or by serving as an intermediary between customers and product developers. 

It is undisputed that the CSM position merged two roles: 

one focusing more on giving customers recommendations 

and one focusing more on making sales. But the submitted 

evidence obscures the extent to which Bigger performed analytical, consultation work as opposed to salesperson work. 

For example, Facebook’s witness explained that CSMs are expected to “understand the client’s business objectives” so they 

9 Although the cases we discuss here preceded the Supreme Court’s 

Encino decision (holding that FLSA exemptions should be construed fairly 

rather than narrowly), whether duties are exempt under the “directly related” standard still depends on the precise nature of the employee’s 

work—a proposition that the cases illustrate. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 18 of 21 PageID #:2862
18 No. 19-1944 

can recommend options from Facebook’s “suite of solutions” 

and “grow [the client’s] business.” But the witness also explained that all CSMs have sales quotas and are “responsible 

for sales with existing clients and [for] identifying growth and 

upsell opportunities.” If there is a distinction between “growing the client’s business” and selling advertisements to clients, the record does not reveal what that distinction is or how 

Bigger’s duties differed for each of those functions. 

A factual issue also remains concerning the extent to 

which Bigger served as an intermediary between customers 

and Facebook’s product developers. Bigger explained that she 

was sometimes a “conduit” or “playing messenger” between 

clients, client partners, and internal Facebook teams. But she 

emphasized that she “was not creating the solutions” for clients, only relaying information and selecting from repositories of preexisting materials. At bottom, there is a genuine dispute about whether Bigger’s interactions with product developers and customers regularly supported, but was distinct 

from, her job to sell advertisements. 

With these factual matters unresolved, Facebook is not entitled to judgment as a matter of law based on the “directly 

related” criterion. 

2. Duties That Include “Exercise of Discretion and Independent 

Judgment” 

Factual issues also remain concerning whether Bigger customarily and regularly exercised discretion and independent 

judgment with respect to matters of significance. See 29 C.F.R. 

§ 541.200(a)(3). 

Exercising discretion and independent judgment “implies 

that the employee has authority to make an independent 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 19 of 21 PageID #:2863
No. 19-1944 19

choice, free from immediate direction or supervision.” 29 

C.F.R. § 541.202(c). But employees may satisfy this qualification “even if their decisions or recommendations are reviewed at a higher level.” Id. Agency regulations list factors 

to consider, including: 

whether the employee has authority to formulate, affect, interpret, or implement management policies or operating 

practices; ... whether the employee has authority to commit 

the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior 

approval; ... whether the employee provides consultation 

or expert advice to management; [and] whether the employee is involved in planning long- or short-term business 

objectives .... 

Id. § 541.202(b). The regulations continue that 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). 

Facebook contends that, in Bigger’s work with clients and 

internal experts, she was expected to perform duties “with a 

significant amount of autonomy and independence.” Bigger 

responds that in these duties, she merely took direction from 

clients and her supervisor, and implemented prescribed steps 

from manuals, scripts, and templates. 

Testifying about her duties that appear to be the same ones 

Facebook contends involve discretion and independent judgment, Bigger explained that she essentially relayed information and followed outlined instructions or troubleshooting 

guides. She further explained that her recommendations to 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 20 of 21 PageID #:2864
20 No. 19-1944 

clients were based on reports generated by Facebook’s analytical tools after she plugged data into them; and her recommendations were either transmitted from other Facebook 

teams or had to be reviewed and accepted by her manager 

and client partner. 

With this evidence in the record, and viewing all facts in 

the light most favorable to Bigger, we cannot conclude that, 

as a matter of law, Bigger customarily and regularly did more 

than apply well-established techniques, procedures, or specific standards prescribed by Facebook. 

In sum, the submitted evidence does not establish all the 

facts necessary to determine whether Bigger fits the administrative exemption. Facebook is therefore not entitled to summary judgment. 

III. CONCLUSION

We AFFIRM the district court’s denial of summary judgment to Facebook. But we VACATE the order authorizing notice, and we REMAND for the court to apply the steps we’ve 

set out. 

Case: 1:20-cv-04699 Document #: 142-7 Filed: 04/02/21 Page 21 of 21 PageID #:2865