Andrade v. Aerotek Inc

• Decision Date: 30 March 2010
• Docket Number: Civil No. CCB-08-2668.
• Citation: 700 F.Supp.2d 738
• Parties: David ANDRADE, et al.v.AEROTEK, INC.
• Court: U.S. District Court — District of Maryland

700 F.Supp.2d 738

David ANDRADE, et al.v.AEROTEK, INC.

Civil No. CCB-08-2668.

United States District Court,

D. Maryland.

March 30, 2010.

COPYRIGHT MATERIAL OMITTED

James Edward Rubin, Rubin Employment Law Firm, Rockville, MD, Steven Bennett Blau, Blau Brown and Leonard PC, New York, NY, for David Andrade, et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Defendant Aerotek, Inc. (“Aerotek”) has moved for summary judgment on the claims of plaintiff Janel Kleinpeter. Ms. Kleinpeter, along with other plaintiffs not subject to this motion, filed suit against Aerotek under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Ms. Kleinpeter alleges that she was improperly classified as exempt when she worked as a Recruiter and as an Account Recruiting Manager (“ARM”) at Aerotek, and was therefore denied overtime she was due. The issues in this motion have been fully briefed and no oral argument is necessary. For the following reasons, the court will grant the defendant's motion.

BACKGROUND ¹

Aerotek is an international staffing company that provides technical, professional and industrial recruiting and staffing services. The company is headquartered in Hanover, Maryland and has approximately 150 offices in the United States. It is divided into eight divisions, each of which focuses on a particular industry or industries. Aerotek employs thousands of recruiters to find, screen and recommend candidates to its clients.

In March 2007, Ms. Kleinpeter began working at Aerotek's Charlotte, North Carolina office as a Recruiter Trainee in the Professional Services Division, which serves the financial services, healthcare, and insurance industries, among others. She had one year of recruiting experience before starting at Aerotek, and she was specifically hired to work on Aerotek's Wachovia account. Recruiter Trainees undergo a ninety-day training period, after which some of them are promoted to Recruiter positions. Trainees are paid by the hour and are classified as non-exempt employees under the FLSA. Ms. Kleinpeter excelled as a Recruiter Trainee, and began recruiting on her own during her second week at Aerotek. Accordingly, on June 4, 2007, Ms. Kleinpeter was promoted to the position of Recruiter. As a Recruiter she earned a salary of $33,000, plus commission. (Kleinpeter Dep. at 67: 3-5, Feb. 12, 2009.) She remained in that position until March 2008, at which point she was again promoted, this time to a Recruiter II position. While a Recruiter II, Ms. Kleinpeter performed the same duties as a Recruiter, but with a larger salary of $38,000, plus commission. ( Id. at 305: 10-18.) Aerotek classifies both Recruiters and Recruiter IIs as exempt from the FLSA.

In April 2008, Ms. Kleinpeter received a third promotion and began working as an ARM. At this point, her duties included work beyond recruiting, such as account management and sales. Although she did not officially become an ARM until April 2008, she had been doing many ARM duties since as early as November 2007. ( Id. at 226: 2-4; 319: 8-13.) ARMs are also salaried and FLSA-exempt employees. Ms. Kleinpeter left her employment at Aerotek in May 2008 to pursue other opportunities.

A. Recruiter Duties ²

As a Recruiter, Ms. Kleinpeter's primary duty was to find and place financial services professionals in contract positions at Aerotek's financial services clients, typically for six-month to one-year durations.³ To accomplish this, Ms. Kleinpeter would source, screen and interview possible contractors. She used a variety of tools to initially identify potential contractors, such as job boards, Monster.com, Career Builder.com, and Aerotek's internal “Team Track” database. ( Id. at 172: 11-17.) She also kept her own personal “pipeline” of contractors, first on a sheet of paper, and later in an excel spreadsheet. ( Id. at 167: 4-11; 178: 11-179: 13.) She usually made between fifty and one hundred calls per day. ( Id. at 168: 6-8) After an initial phone call, she would have an in-person screening interview in order to assess a candidate's personality. ( Id. at 183: 14-184: 1.) Because Ms. Kleinpeter also met with managers at the client company, she would then determine whether the candidate would be a good personality fit. ( Id. at 181: 1-7; 185: 7-14.) Additionally, she would ask for three professional references from each potential contractor. She would call the references to verify employment and work performance, and to ask any questions that were remaining after the screening interview. ( Id. at 238: 12-17.)

Ms. Kleinpeter did not make the ultimate decision as to which candidates were presented to the client's hiring manager, however. Rather, she would send the resumes of contractors she believed to be the most qualified to one of the Account Managers on the Wachovia account, Chris Parise or Todd Brannon, who was overseeing the position. She would also type up a “submission statement” describing the candidate, and send it to the Account Manager along with each resume. ( Id. at 193: 4-9.) Sometimes she would present to her Account Manager a candidate who lacked some of the qualifications for the position, but whom she thought would nevertheless be a good fit. ( Id. at 202: 5-9.) She would also “advocate” to her Account Manager on behalf of a contractor that she had a “gut feeling about”, even one with less experience than others. ( Id. at 247: 3-22.) Roughly seventy-five percent of the candidates that Ms. Kleinpeter presented to her Account Manager would be forwarded to the client's hiring manager. ( Id. at 194: 19-195: 7.) On a couple of occasions, at Mr. Brannon's request, Ms. Kleinpeter sent resumes directly to the client hiring manager, but she did so from his email account “because he did not want [her] sending those resumes through [her] E-mail.” ( Id. at 187: 17-20.) Ms. Kleinpeter testified that Mr. Parise rarely had any questions about the candidates she sent him because “he didn't have a whole lot of experience selling into financial services and so I was kind of helping him along.” ( Id. at 194: 14-18.) Mr. Brannon would only have “a couple more questions here and there”. ( Id. at 194: 19-22.)

Ms. Kleinpeter would negotiate certain matters with candidates before their resumes were sent to the client company. For instance, she would negotiate pay. ( Id. at 204: 12-14.) She explained in her deposition that there was a “wide variety of ways you can go about [negotiating pay]”. ( Id. at 205: 12-15.) Her Account Manager might indicate a margin of profit that Aerotek intended to make on a particular position, and this would provide Ms. Kleinpeter with a range of pay that she could offer. ( Id. at 205: 20-206: 6.) Within that range, Ms. Kleinpeter had the ability to decide what amount to offer a candidate. ( Id. at 206: 22-207: 4.) She also had the ability to negotiate vacation and holiday pay. Ms. Kleinpeter testified that “[t]hose were up to the discretion of the recruiter.” ( Id. at 207: 17-19.) She added that “[i]f [a recruiter] felt like that was going to make or break a deal, you were allowed to offer it to them.” ( Id. at 207: 19-21.) On some occasions, Ms. Kleinpeter also recommended to her Account Manager that the client lower its expectations for the type of candidate it was going to find based on the pay being offered. ( Id. at 203: 9-19.) Sometimes, she would recommend that either expectations be lowered or rates be increased. ( Id. at 204: 4-7.) Her Account Manager would then deal with the client's expectations. ( Id. at 204: 8-11.)

Ms. Kleinpeter prepared all candidates for their interviews with the client company. Once a candidate was hired, it was Ms. Kleinpeter's job to also “manage contract employees while on assignment” and to “[a]ssess and investigate contractor related problems, and administer performance counseling, coaching and disciplinary measures when necessary.” ( Id. at 242: 17-243: 7; see also Def.'s Summ. J. Mem. at Ex. B5, Aerotek Recruiter Job Description.) Ms. Kleinpeter testified that she took contractors who had been hired by the client out to lunch, coffee or dinner “at least once a month.” ( Id. at 253: 6-9.) The contractors would contact her with problems and would report how things were going in their new positions. ( Id. at 253: 19-254: 2.) Clients, however, would typically report contractor problems to the Account Managers. ( Id. at 254: 3-6.) On at least one occasion, however, Ms. Kleinpeter was asked by a client hiring manager to discipline a contractor by having a conversation about a problem at work. ( Id. at 258: 16-259: 4.) She never personally had to terminate anyone, but recalled that other Recruiters had to terminate contractors. ( Id. at 259: 5-8.) Such decisions were made by the clients and not the Recruiters themselves. ( Id. at 260: 13-261: 9.)

It was also part of Ms. Kleinpeter's job as a Recruiter to “maintain relationships with industry contacts to provide customer service, gain industry knowledge, and get referrals and sales leads.” ( Id. at 244: 13-21; see also Def.'s Summ. J. Mem. at Ex. B5.) As part of this duty, she had business meetings with managers at the client company. (Kleinpeter Dep. at 181: 5-14.) As a Recruiter, Ms. Kleinpeter even brought in a new account to Aerotek. ( Id. at 274: 11-275: 9.)

B. ARM Duties

By November 2007, Ms. Kleinpeter was regularly taking on the duties of the ARM for the Wachovia account as well, and by January 2008, she was “full force doing sales and recruiting.” ( Id. at 319: 10-13.) Her compensation of $38,000 base salary plus commission remained the same, however. ( Id. at 320: 3-16.) Ms. Kleinpeter testified that “[a]n ARM role is a hybrid of recruiting.” ( Id. at 320: 20.) In this position, she did fifty percent sales and fifty percent recruiting. According to Ms. Kleinpeter, as part of the sales team, she helped sell and “generate leads, more client development.” ( Id. at 370: 3-7.) She was required to have five to seven face-to-face meetings...