This afternoon, Judge McMahon issued an order dismissing an FLSA case seeking overtime pay for KMPG’s “Audit Associates.” She concluded they were exempt “professionals”:
First things first. There is no question that Audit Associates are required to perform some fairly mundane tasks in the course of performing an audit. In that they do not differ from young doctors or young lawyers or young architects or young engineers or other young professionals who are just embarking on their careers. Nothing in the record suggests, however, that Audit Associates spend the bulk of their time performing such obviously non-exempt work — certainly nothing approaching the magic “50%” figure — and Plaintiffs do not argue as much. . . . . Audit Associates undoubtedly spend a great deal of time doing things that are tedious and unglamorous, like comparing numbers or inputting numbers into a spreadsheet. But the fact that the work is tedious and unglamorous does not make it unimportant or non-professional. While Audit Associates are (unsurprisingly) not allowed to do everything associated with an audit, or to be the final word on any procedure, the work they do is vital to the process . . . . Significantly, the work performed by Audit Associates fits squarely within criteria that were cited approvingly by the Supreme Court in SmithKline to describe work that was not intended to be qualify for overtime under the FLSA. Members of an outside audit team perform work that is “difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s overtime provision.” Outside auditors do work that is often anything but exciting, but it is not the same as working on an assembly line or as a file clerk or bussing tables at a restaurant. It would be impossible for a professional member of an audit team — even at the lowest rung of professionalism to pass his work off to someone else at the end of a 40 hour work week; successful auditing requires continuity of operations and personnel and considerable teamwork.