McKeen-Chaplin v. Provident Savings Bank: 9th Cir. Finds Mortgage Underwriters Not Exempt from FLSA OT

On July 5, 2017, in a decision which deepens a split among the Circuits, McKeen-Chaplin v. Provident Savings Bank, FSB, the Ninth Circuit Court of Appeals held that mortgage underwriters are not exempt from FLSA overtime requirements. No. 15-16758 (9th Cir. July 5, 2017) (slip op. available here). The panel found that Provident Savings Bank’s mortgage underwriters qualify for neither the “administrative exemption” nor the “white-collar exemption” from the FLSA overtime requirements, reversing the district court’s grant of summary judgment in favor of the bank.

Provident sells mortgage loans to consumers purchasing or refinancing homes and then resells those funded loans on the secondary market. Underwriters at Provident apply guidelines established by the bank in analyzing loan applications to determine prospective borrowers’ creditworthiness and could impose conditions on loan applications based on the underwriter’s analysis or request that Provident make exceptions to its guidelines in certain cases. However, Provident’s underwriters were not responsible for finalizing loan funding or the sale of approved loans, or for selling approved loans on the secondary market. Provident’s underwriters often worked more than 40 hours in a workweek but were never provided overtime compensation, as they were classified as exempt.

In 2012, McKeen-Chaplin filed suit against Provident on behalf of herself and other mortgage underwriters, alleging overtime violations. Provident moved for summary judgment, arguing that the underwriters are exempt from FLSA overtime pay requirements under the administrative exemption, which is reserved for employees whose primary duties involve the exercise of discretion and independent judgment on matters of significance to the business. The plaintiff asserted that an employee’s work must relate to a company’s management or general business operations for the “administrative exemption” to apply, and that here, the employees’ work did not relate to Provident’s management or general business operations because underwriting home mortgage applications was more akin to being a part of a production line, generating a product or service offered by the business, rather than running or servicing the business.  However, the district court ruled that the underwriters’ primary duties qualified them as exempt under the “administrative exemption” because Provident’s underwriters were primarily providing “quality control” assurances to their employer that directly related to the employer’s business operations. Slip op. at 5.

The Ninth Circuit reversed the district court, focusing its analysis on the fact that Prudential’s mortgage underwriters had no authority to decide whether to “take on risk, but instead assessed whether . . . the particular loans at issue fall within the range of risk Provident has determined it is willing to take.” Slip op. at 10. Analyzing the issue under the Department of Labor’s “short duties” test set forth in 29 C.F.R. section 541.700(a), the Court of Appeals reasoned that Provident’s underwriters fell on the “production” side of the “administrative-production dichotomy” because their duties relate more to the creation and sale of the bank’s products than to the actual, general operation of the bank itself. In so ruling, the Ninth Circuit avoided finding that, as a matter of law, mortgage underwriters could never qualify for the administrative exemption because an underwriter who has more authority to set policy for its employer could arguably meet the “administrative exemption.” The Court of Appeals’ ruling also affirmed a long-standing Ninth Circuit precedent that an employee’s work must relate to company management or general business operations for this exemption to apply.

In McKeen-Chaplin, the Ninth Circuit sided with the Second Circuit, which, in 2009, held that the administrative exemption did not apply to underwriters at J.P. Morgan Chase. Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009). More recently, the Sixth Circuit rejected the Second Circuit’s analysis in reaching the opposite conclusion in a case involving underwriters with Huntington Bancshares. See Lutz v. Huntington Bancshares, Inc., 815 F.3d 988, 995 (6th Cir. 2016). Until this circuit split is taken up and resolved by the U.S. Supreme Court, employers of mortgage underwriters will need to carefully review underwriters’ duties to determine whether they are properly classified as exempt under the FLSA.

Authored by:
Jordan Carlson, Associate
CAPSTONE LAW APC