Brightline Marketing: Exemption, Leave, and Accommodation in One Week
Brightline Marketing is a 60-person agency with no HR professional; the office manager handles paperwork. Three issues landed in the same week. First, two assistant account managers are paid a $38,000 salary and regularly work 50 to 55 hours. Their duties are client scheduling and invoice processing under written procedures; they cannot commit the agency to anything and their work is checked by an account director. Both are classified exempt. Second, an art director with fourteen months of service and 2,000 hours worked last year requests ten weeks off to care for her father, who has advanced Parkinson's disease. The creative director says she is too valuable to lose right now and that the agency is 'too small for that law.' Third, a copywriter with diagnosed generalized anxiety disorder asks to work from home three days a week. The agency denies it because 'creative work needs collaboration.' The agency has had more than 50 employees for four years.
1. Analyze the exempt classification of the two assistant account managers and quantify the exposure if it is wrong.
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Framework. The white-collar exemptions require the salary level, payment on a salary basis, and the duties test. The salary threshold is $684 per week ($35,568 per year) under the regulation currently in effect, but that figure has been amended and litigated repeatedly, so confirm the operative level before relying on it. Here it does not matter much: at $38,000 the salary level is met under the current rule and would fail under the 2024 rule that was vacated. Either way the classification fails on duties, which is the stronger ground.
Duties. The administrative exemption requires that the primary duty be office or non-manual work directly related to management or general business operations, and that the employee exercise discretion and independent judgment on matters of significance. Scheduling and invoice processing under written procedures, with the output checked by an account director and no authority to commit the agency, is production work. There is no discretion, no matters of significance, and no independent judgment. The executive exemption fails because neither employee manages a department or supervises anyone; the learned professional exemption is irrelevant.
Exposure. Regular rate = $38,000 ÷ 2,080 = about $18.27 per hour, so the overtime premium is about $9.14 for each hour over 40. At 12 extra hours per week for two years: 12 × 104 = 1,248 hours × $9.14 ≈ $11,400 per employee in unpaid premiums. Add an equal amount in liquidated damages absent good faith, a two-year lookback (three if willful), plaintiffs' attorneys' fees, and possible state-law penalties. Multiply across anyone else in a similar role.
Fix. Reclassify prospectively, convert to hourly at a realistic rate that accounts for expected overtime, institute timekeeping, and consider a self-audit with back pay, which limits damages and reads far better if a claim is later filed.
2. Is the art director entitled to FMLA leave, and what must Brightline do?
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Eligibility, element by element.
- Employer coverage: private employer with 50 or more employees for each working day in 20 or more calendar weeks. Brightline has 60 and has been above the threshold for four years. The creative director's 'too small for that law' is simply wrong.
- Employee eligibility: 12 months of service and 1,250 hours in the prior 12 months. Fourteen months and 2,000 hours both satisfy this.
- Qualifying reason: caring for a parent with a serious health condition is expressly covered, and 10 weeks is within the 12-week entitlement.
So the leave is due, and the agency cannot deny it because the team is busy.
The only theoretical escape is the key-employee exception, and it does not fit. It covers salaried employees among the highest-paid 10% of the workforce, and it requires that reinstatement cause substantial and grievous economic injury to the operation, not that the department be inconvenienced during a busy quarter. If the agency did invoke it, it would have to give written notice of the intent to deny reinstatement and the employee could elect to return anyway.
What to do now: issue a written designation notice within five business days, provide the rights and responsibilities notice, continue her health coverage on the same terms, count the leave correctly, and restore her to the same or an equivalent position on return. Train the creative director not to make comments about her being 'too valuable to lose right now,' because that remark, followed by any adverse action, is the beginning of a retaliation claim. Also check whether the state has a paid family leave program that runs concurrently or in addition.
3. How should Brightline respond to the copywriter's request to work from home three days a week?
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Step one: treat it as an accommodation request, not a scheduling preference. Generalized anxiety disorder can qualify as a disability under the ADA, so the agency should begin the interactive process rather than answer with a slogan. The response should be prompt, documented, and conducted with someone who knows the job.
Step two: get the information needed and no more. The agency may ask for reasonable documentation that the condition is a disability and that the requested accommodation is related to it. It may not demand a full medical history, and the medical information must be kept confidential in a file separate from the personnel file.
Step three: analyze the job, not the phrase. 'Creative work needs collaboration' is a conclusion, and it may or may not be true. The right question is which specific essential functions genuinely require physical presence, and how often. A copywriter's core function is writing. Brainstorms, client presentations, and creative reviews may require presence; heads-down drafting ordinarily does not, and the last several years of practice have made remote collaboration a weak undue-hardship argument for most knowledge work.
Step four: consider the range of options, not just yes or no. A three-day trial with structured check-ins, two fixed in-office days aligned with creative reviews, core hours with flexibility at the edges, a quiet workspace, written rather than verbal feedback, or temporary leave while treatment is adjusted are all accommodation candidates. Undue hardship means significant difficulty or expense, which is a high bar for a 60-person agency and three days a week.
Step five: if the agency still denies it, deny it in writing with a specific, job-based rationale and document the interactive process. Absent that record, the denial looks like a reflexive refusal and the agency will struggle to defend it.