Co-authored by John Giovannone, Kyle Petersen, and Noah Finkel

Seyfarth Synopsis: Earlier this month, the Ninth Circuit chose to side with the Second Circuit, and not the Sixth Circuit, to opine that mortgage underwriters fail to meet the FLSA’s administrative exemption from overtime test because underwriting duties “go to the heart of… marketplace offerings, not to the internal administration of” the mortgage banking “business.” That is, their duties were found to fall on the “production side” of the tortuous, judicially created “administrative/production” dichotomy.

Selling loans is not a duty that satisfies the FLSA’s administrative exemption test. But loan underwriters do not sell or even drive sales of loans. If anything, they apply the brakes after a loan officer has made the pitch and obtained a loan application from a prospective borrower.

Underwriters perform a distinct back-office role. They apply a multitude of factors to decide whether their employers should extend credit—after the application has been completed and the loan has been sold pending approval. We only have to look back about a decade to this country’s housing credit crisis to appreciate the central importance to a lender of a high-functioning and discerning underwriting team.

Historically, Underwriters Have Been Found Exempt Under The Administrative Exemption

Particularly now, given the odor that still wafts from the bursting of the housing bubble, one would think the modern judiciary would readily view underwriters as primarily providing a centrally important variety of “office or non-manual work related to the management or general operations of the employer” lender—work that thus satisfies this requirement of the administrative exemption test.

And in 2015, consistent with this common-sensical assessment of underwriting, the Sixth Circuit in Lutz v. Huntington Bank concluded that mortgage underwriters were administrative exempt precisely because they “assist in the running and servicing of the Bank’s business by making decisions about when [the Bank] should take on certain kinds of credit risk, something that is ancillary to the Bank’s principal production of selling loans.”

Ninth Circuit Denies Underwriters’ Administrative Exemption

Earlier this month, the Ninth Circuit, in McKeen-Chaplin v. Provident Bank deviated from the Sixth Circuit’s sound decision in Lutz. In assessing whether mortgage underwriters’ work is “related to the management or general operations” of the bank, examined a judicially created “framework for understanding whether employees satisfy [this] requirement [called] the ‘administrative-production dichotomy.’”

The dichotomy’s purpose, Provident Bank explained, “is to distinguish between the goods and services which constitute the business’ marketplace offerings” (so-called non-exempt production work), “and work which contributes to ‘running the business itself’” (so-called exempt administrative work).

          Provident Bank’s Labored Discussion of The Administrative/Production Dichotomy And The Circuit Split.  Provident Bank applied its strained view of administrative/production dichotomy by first observing that, “in the last decade, two of our sister Circuits have assessed whether mortgage underwriters qualify for the FLSA’s administrative exemption and have come to opposite conclusions. The Second Circuit held in Davis v. J.P. Morgan Chase [in] 2009.. that ‘the job of an underwriter… falls into the category of production rather than administrative work.’ … In contrast, the Sixth Circuit held recently that mortgage underwriters are exempt administrators, explaining that they ‘perform work that services the Bank’s business, something ancillary to [the Bank’s] principal production activity’… . [W]e conclude the Second Circuit’s analysis in Davis should apply.”

Having voiced a preference for the Second Circuit’s more restrictive application of the administrative/production dichotomy (which had, perhaps erroneously, assumed that underwriters were involved in the sale of mortgages), Provident Bank applied the dichotomy to hold that the mortgage underwriters were production workers, even while conceding a number of non-production components of mortgage underwriter work.

Provident Bank observed, for example, that mortgage underwriters “do review factual information and evaluate the loan product and information and … assess liability in the form of risk,” but then immediately dismissed this important role by concluding that the bank’s promulgation of underwriter “guidelines that [the underwriters] do not formulate,” somehow reduced the administrative quality of the work.

Provident Bank even went on to acknowledge the existence of significant differentiation between non-exempt “loan offers in the mortgage production process [and mortgage underwriters]—most significantly [the distinguishing fact that underwriters’] primary duty is not making sales on Provident’s behalf.”

          A “Not So Distinct From Production” Standard?  Despite these factual findings, the Provident Bank court still applied the administrative/production dichotomy to invalidate the bank’s determination of exempt status. To accomplish this goal, Provident Bank articulated a “not so distinct from production” standard, explaining that the mortgage underwriters were still not administrative exempt because their duties “are not so distinct” from loan officers’ role in the “mortgage production process” so “as to be lifted from the production side [of the dichotomy] to the ranks of administrators.” The Ninth Circuit then ratcheted the standard up by explaining that “the question is not whether an employee is essential to the business, but rather whether her primary duty goes to the heart of internal administration — rather than marketplace offerings” (emphasis added).

This “not so distinct from production” standard highlights the limitations of the administrative/production dichotomy and runs afoul of its intended purpose. For example, the Department of Labor’s 2004 regulations, and case law, have made clear that this “dichotomy has always been illustrative – but not dispositive – of exempt status.” The dichotomy “is only determinative if the work ‘falls squarely’ on the production side of the line.”

Certainly, work that “is not so distinct” from the production side of the line is a far cry from work that “falls squarely” on the production side of the line. But a finding that work is not so distinct from production, though virtually meaningless, is all that Provident Bank seems to require.

The Administrative-Production Dichotomy Has Been Stretched Beyond Its Utility, Resulting In A Circuit Split And Confusion

Provident Bank’s finding that underwriting work “is not so distinct from production” work has little to do with the test for administrative exemption or the Department of Labor’s explanation of the limitations of the administrative/production dichotomy. Yet Provident Bank threatens to flip the dichotomy on its head, as it could be read to require an employer to show that that the work “falls squarely” off “the production side of the line” rather than establishing merely what the FLSA requires: that the employee performed office or non-manual work related to the management or general operations of the employer.

Sometimes, work such as underwriting does not obviously fall squarely on one side of the administrative/production dichotomy line or the other. That is why, for example, even the historically exemption-resistant California Supreme Court in Harris v. Superior Court (2011) observed “the limitations of the administrative/production worker dichotomy itself as an analytical tool” and thus reversed a decision that “improperly applied the administrative/production worker dichotomy as a dispositive test” with respect to insurance claims adjusters.  Harris explained that since “the dichotomy suggests a distinction between the administration of a business on the one hand, and the ‘production’ end on the other, courts often strain to fit the operations of modern-day post-industrial service-oriented businesses into the analytical framework formulated in the industrial climate of the late 1940’s’” when they should not force a strained application of the dichotomy, which is just an illustrative tool. Indeed, the Seventh Circuit of Appeals similarly reasoned in Roe-Midgett v. CC Services, Inc., (7th Cir. 2008) that the “typical example” of the dichotomy is a factory setting, an analogy that is “not terribly useful” in the service context.

Two Circuits have now built the administrative/production dichotomy into something larger than it was ever intended to be. The focus on the administrative/production dichotomy has overshadowed and confused focus on the actual rules and regulations intended to be assessed in considering the administrative exemption.

Provident Bank creates more questions than answers for employers seeking to classify their workforce, and calls out for Supreme Court review, or for Department of Labor clarification on how courts are supposed to apply the administrative-production dichotomy.