Some Decisions Discounting the Importance of Plaintiffs’ Resumes in Overtime Misclassification Cases

Often, in cases in which the Plaintiff alleges that he was misclassified under the white-collar exemptions to federal and state overtime laws, the Defendant, seeking to prove that the Plaintiff performed executive, administrative or professional tasks, often places great emphasis on the Plaintiff’s description of his former job duties on his current resume. Here are some cases in which courts have been unimpressed by such evidence, due, in part, to the common sense understanding that almost everyone (including Plaintiffs) engage in “puffery” when they prepare a resume:

Schaefer v. IMPC, 358 F.3d 394 (6th Cir. 2004): The Court observed: “Neither the job description that Schaefer wrote for his resume nor Schaefer’s failure to dispute AEP’s position descriptions or performance evaluations prior to this lawsuit preclude him from arguing that his day-to-day activities differ from those described in these documents-such actions merely raise credibility questions for the factfinder. Indeed, we have recognized that “resumes may not provide the most accurate picture of an employee’s job because resumes are typically ‘designed to enhance the employee[’]s duties and responsibilities in order to obtain a job.”

Pendlebury v. Starbucks, 518 F.Supp.2d 1345 (S.D. Fla. Sept. 21, 2007): The district court reasoned that contradictions in a misclassified employee’s resume “merely raise credibility questions for the factfinder … we have recognized that ‘resumes are typically designed to enhance the employee’s duties and responsibilities in order to obtain a job.”

Perkins v. SNTC, 669 F.Supp.2d 212, (D. Conn. Nov. 4, 2009): The district court stated: “SNET also relies on language from plaintiffs’ resumes to argue that certain plaintiffs had more discretion or a larger leadership role than that to which they testified. . . . The court does not find this argument persuasive. The Sixth Circuit has noted that, “The key to determination of whether an employee is covered by an exemption to the FLSA overtime requirements does not depend on an employee’s general characterization of his or her job in a resume designed to enhance the employee’s duties and responsibilities to obtain a job…. What is important is what an employee actually does on a day-to-day basis.

Wolfslayer v. IKON, 2005 WL 181913, (E.D. Pa. Jan. 26, 2005): The district court observed that employees’ assertions in resumes “must be taken with a grain of salt.”

Aguirre v. SBC, 2007 WL 4561145 (S.D. Tex. Dec. 20, 2007): The district court discounted the importance of the employee’s representations in resumes, explaining: “In determining whether an employee is an exempt executive, a court looks at the actual day-to-day job activities of the employee, not the labels the employee or the employer places on those duties.”

Bullard v. Babcock, 2009 WL 1704251, (N.D. Tex. June 17, 2009): The district court stated: “General job descriptions contained in an employee’s resume or prepared by the employer may be considered in determining whether employee is exempt administrative employee under overtime provisions of FLSA, but are not determinative.”

Kohl v. Woodlands, 440 F.Supp.2d 626, (S.D. Tex. 2006): The district court wrote: “In determining what an employee’s day-to-day job activities are, general job descriptions contained in an employee’s resume or prepared by the employer may be considered, but are not determinative, and descriptions contained in depositions and affidavits should be considered as well.”

Paul v. UPMC, 2009 WL 699943, (W.D. Pa. Mar. 10, 2009): The district court observed that “determination of the 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. The focus is on the evidence of the plaintiff’s day-to-day duties, and not on job descriptions, resumes, or performance evaluations.”

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