In re RBC Dain Rauscher Overtime Litigation (703 F. Supp. 2d 910, 2010)

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

Plaintiffs Carlos Alvarez, Ana Blumberg-Markus, Susan Capozzoli, Andres Cruz, Eugene David, Patrick Grattan, Christopher Kennedy, Martin Kuhlman, Felipe Pazos, and Alberto Roque (collectively, “plaintiffs”), on behalf of themselves and all others similarly situated, brought this putative nationwide collective action and class action against their employer RBC Capital Markets Corporation and its related and predecessor entities, including RBC Dain Rauscher, Inc., RBC Capital Markets, RBC Global Debt Markets U.S. (collectively, “RBC”), alleging overtime and minimum wage violations under the Fair Labor Standards Act (“FLSA”) and violations of certain provisions of the Employee Retirement Income Security Act of 1974 as amended (“ERISA”) and certain state labor laws. RBC contends that the plaintiffs fall within one or more of the FLSA exemptions for minimum wages and overtime pay, and that there is no factual basis for the ERISA or state law claims. RBC filed motions for summary judgment as to each plaintiff, and plaintiffs filed motions for conditional certification of a collective action and for class certification. For the reasons stated below, the Court grants the motions for summary judgment as to Grattan, Pazos, and Roque, grants in part and denies in part the motions for summary judgment as to Alvarez, Capozzoli, Blumberg-Markus, Cruz, David, Kennedy, and Kuhlman, grants plaintiffs’ motion for conditional certification of a collective action, and denies plaintiffs’ motion for class certification.

BACKGROUND

RBC is a registered broker dealer in the United States and holds itself out as providing investment banking and investment services to high-net-worth individuals. (Def.’s Answer to Pis.’ Second Consolidated Am. Compl. ¶ 57, Docket No. 85.) RBC’s business is divided into three major segments: the Private Client Group, which serves individual investors; the Fixed Income Capital Markets Team, which serves institutions, municipalities, and nonprofit organizations; and the Clearing and Execution Services Group, which serves independent brokers. (Second Consolidated Am. Compl. ¶ 55, Docket No. 77; Iverson Supp. Deck ¶ 4, Docket No. 242.) RBC maintains at least 43 offices in the United States, and it is an indirectly wholly owned subsidiary of the Royal Bank of Canada. (Def.’s Answer to Pis.’ Second Consolidated Am. Compl. ¶¶ 57-58, Docket No. 85.) RBC is incorporated in Minnesota and its principal place of business is New York.

The plaintiffs are former RBC employees who worked for RBC in California, Florida, and New York as securities brokers, also known as “registered representatives.” Blumberg-Markus, David, Kennedy, and Kuhlman (the “California plaintiffs”) worked in the Private Client Group in RBC’s California offices. All of the California plaintiffs held the title of Financial Consultant, and Kennedy also held the title of Senior Investment Associate. Capozzoli worked as a Senior Investment Associate and as a Senior Financial Associate in the Private Client Group in RBC’s New York offices. Alvarez, Cruz, Grattan, Pazos, and Roque (the “Florida plaintiffs”) worked in the Fixed Income Group in RBC’s Miami office. Grattan, Pazos, and Roque held the title of Institutional Salesperson, Cruz held the title of Junior Salesperson, and Alvarez held the title of Salesperson. In a 2007 downsizing, RBC terminated approximately 48 securities brokers, including the Florida plaintiffs. (Id. ¶ 77.)

Plaintiffs allege that they worked at RBC as inside sales people whose duties were set forth in uniform, company-wide policies and procedures. (Second Consolidated Am. Compl. ¶¶ 14, 17, Docket No. 77.) As such, they would likely be eligible for overtime compensation and minimum wage under the FLSA and state law. RBC’s motions for summary judgment require the Court to conduct an individualized analysis of the work duties of each of the ten plaintiffs, but three job characteristics are common to all or nearly all of the individual plaintiffs: their compensation arrangement, the “Series 7” license requirement for registered representatives, and the “Know Your Customer” rules established by the Financial Industry Regulatory Authority (“FINRA”), the successor to the National Association of Securities Dealers (“NASD”).

RBC compensates its securities brokers “principally on a commission basis, irrespective of the hours actually worked.” (Id. ¶ 17.) RBC guarantees that a securities broker’s compensation will always meet the minimum salary requirement under the FLSA. (Iverson Dep. at 120, Wells Deck Ex. 23, Docket No. 231.) If a broker’s commission-based compensation falls beneath the FLSA minimum, RBC automatically increases compensation for that pay period so that it will meet the minimum. (Id. at 120-21.) RBC views these automatic payments “as a non-forgivable draw against future [commission] payments.” (Id. at 121.) The payments are therefore “offset ... in future months.” (Id.) RBC uses “a recovery process to track the [makeup] payments and recoup (or recover) the amount from future commission months in which the [broker] is above the minimum.” (Wells Deck Ex. 51, Docket No. 231.)

A second component of RBC’s compensation arrangement relates to broker errors in placing trade orders. If a broker makes an error in executing a trade, RBC cancels the broker’s anticipated commission for that trade and, if RBC incurs any loss based on the error, RBC deducts that loss from the broker’s future commissions.

FINRA regulations require any securities broker who deals directly with customers and who sells and discusses securities with those customers to obtain a Series 7 license. (Alvarez Dep. at 77.) The Series 7 licensing examination is the qualification examination for general securities registered representatives. (Grattan Dep. Ex. 3 at 1.) The Series 7 examination is a six-hour, 250-question multiple-choice examination that “seeks to measure accurately and reliably the degree to which each candidate possesses the knowledge, skills and abilities needed to perform the critical functions of a registered representative.” (Id.) It “intends to measure competence at an entry level.” (Id.) The New York Stock Exchange publishes a thirty-six page booklet with a content outline of the topics the Series 7 examination covers and some sample questions. (Grattan Dep. Ex. 3.) The outline is based on seven “critical functions and tasks” of the registered representative. (Id. at 2-4.) In performing the critical functions, a registered representative:

(1) Seeks business for the broker-dealer through customers and potential customers ....

(2) Evaluates customers in terms of financial needs, current holdings, and available investment capital, and helps them identify their investment objectives____

(3) Provides customers and prospective customers with information on investments and makes suitable ree- - ommendations....

(4) Opens, transfers, and closes customer accounts and maintains appropriate account records....

(5) Explains the organization, participants, and functions of various securities markets and the principal factors that affect them....

(6) Obtains and verifies the customer’s purchase and sale instructions, enters orders, and follows up on completion of transactions .... [and]

(7) Monitors the customer’s portfolio and makes recommendations consistent with changes in economic and financial conditions as well as the customer’s needs and objectives.

{Id. at 3.) The substance of the outline corresponds to a variety of laws, rules, and regulations governing the work of registered representatives. {See id. at 23-26.)

According to Grattan, the Know Your Customer rules require a registered representative to “ensure that the services and advice provided to [the] client are suitable for [the client’s] investment needs, and that the client is a bona fide client and the information they provide is correct.” (Grattan Dep. at 23; see, e.g., Alvarez Dep. Ex. 1.) Capozzoli explained that the rules require a registered representative to understand “as much about the customer’s financial situation and even partially personal situation to make proper recommendations as a registered representative.” (Capozzoli Dep. at 26.) Cruz explained that the purpose of the rules is “to know the source of the funds that your client invests,” and “to know what securities they can invest in or what securities are better suited for that type of client.” (Cruz Dep. at 27.)

Plaintiffs allege that they “regularly worked in excess of forty (40) hours per workweek and/or in excess of eight (8) hours per day.” (Second Consolidated Am. Compl. ¶ 14, Docket No. 77.) They allege that they are entitled to unpaid wages from RBC for hours worked in which they did not receive minimum wages mandated under the FLSA and state law, and that they are entitled to unpaid wages for overtime work for which they did not receive overtime premium pay mandated under the FLSA and state law. {Id. ¶¶ 8-11.) The California plaintiffs also allege that RBC violated ERISA and California law by taking improper payroll deductions for a non-ERISA plan and by improperly retaining contributions to a deferred compensation plan that did not meet the qualifications necessary to avoid ERISA coverage. {Id. ¶ 13.)

On July 24, 2006, two plaintiffs who are no longer parties to this action filed a complaint against RBC in the United States District Court for the District of Minnesota. (Compl., Docket No. 1.)

On July 27, 2006, David filed a class action complaint in California state court, and RBC removed the ease to the United States District Court for the Central District of California. David v. RBC Dain Rauscher, No. 06-4402, Docket No. 46 (D.Minn. Nov. 3, 2006). On October 30, 2006, the Central District of California granted RBC’s motion to transfer venue to the District of Minnesota. Id.

On October 19, 2006, Kennedy and an individual who is no longer a party to this action filed a class action complaint in California state court, and RBC removed the case to the Central District of California. Kennedy v. RBC Dain Rauscher, No. 07-500, Docket No. 16 (D.Minn. Jan. 26, 2007). On January 22, 2007, the Central District of California granted RBC’s motion to transfer venue to the District of Minnesota. Id.

On March 9, 2007, Kuhlman and Susan Sabin filed an amended complaint, substituting themselves for the two original plaintiffs. (Amended Class/Collective Action Compl. at 1 n. 1, Docket No. 27.)

On May 11, 2007, Magistrate Judge Franklin L. Noel issued an order granting Kuhlman and Sabin’s motion to consolidate cases. (Docket No. 42.) On May 24, 2007, pursuant to that order, David, Kennedy, Kuhlman, Sabin, as well as Blumberg-Markus, filed a consolidated amended corn-plaint. (Consolidated Am. Compl., Docket No. 43.)

On December 11, 2007, Capozzoli filed a class action complaint in the United States District Court for the Southern District of New York. Capozzoli v. RBC Dain Rauscher, Inc., No. 08-935, Docket No. 8 (D.Minn. Apr. 3, 2008). On March 24, 2008, pursuant to the parties’ stipulation, the court transferred the case to the District of Minnesota. Id.

On March 6, 2008, Alvarez, Cruz, Grattan, Pazos, and Roque filed a class action complaint in the United States District Court for the Southern District of Florida. Pazos v. RBC Dain Rauscher, Inc., No. 08-1029, Docket No. 10 (D.Minn. Apr. 10, 2008). On April 7, 2008, pursuant to the parties’ stipulation, the court transferred the case to the District of Minnesota. Id.

On August 6, 2008, plaintiffs filed a second consolidated amended complaint. (Second Consolidated Am. Compl., Docket No. 77.) The complaint alleges a nationwide collective action on behalf of all RBC securities brokers, a California state-wide class action on behalf of all RBC securities brokers within the State of California, a New York state-wide class action on behalf of all RBC securities brokers within the State of New York, a Florida state-wide class action on behalf of all RBC securities brokers within the State of Florida, and an ERISA class on behalf of all RBC securities brokers whom RBC “induced and/or required to contribute to a deferred compensation plan” that RBC claimed was a non-ERISA plan. (Id. ¶¶ 2-6.)

The complaint alleges fifteen causes of action. The first and second counts are brought on behalf of the nationwide collective class. Count 1 alleges failure to pay overtime in violation of the FLSA. (Id. ¶¶ 81-88.) Count 2 alleges failure to pay minimum wage in violation of the FLSA. (Id. ¶¶ 89-92.)

Counts 3 through 11 are brought on behalf of the California plaintiffs and a California class. Count 3 alleges failure to pay overtime, in violation of California law. (Id. ¶¶ 93-103.) Count 4 alleges failure to pay California’s minimum wage, in violation of California law. (Id. ¶¶ 104-07.) Count 5 alleges that RBC made illegal deductions from the California plaintiffs’ wages. (Id. ¶¶ 108-15.) Count 6 alleges failure to reimburse employees for necessary expenditures incurred in direct consequence of work duties, in violation of California law. (Id. ¶¶ 116-19.) Count 7 alleges failure to comply with deadlines for payment of wages, in violation of California law. (Id. ¶¶ 120-23.) Count 8 alleges failure to pay employees within the proper pay period by paying employees only once per month, in violation of California law. (Id. ¶¶ 124-26.) Count 9 alleges failure to provide rest and meal breaks, in violation of California law. (Id. ¶¶ 127-29.) Count 10 alleges failure to provide accurate and detailed records of hours worked and wages earned, in violation of California law. (Id. ¶¶ 130-32.) Count 11 alleges violations of California’s unfair competition law resulting from RBC’s violations of the California Labor Code. (Id. ¶¶ 133-40.)

Counts 12 and 13 are brought on behalf of Capozzoli and a New York class. Count 12 alleges failure to pay overtime, in violation of New York law. (Id. ¶¶ 141-47.) Count 13 alleges that RBC made illegal deductions from employees’ wages, in violation of New York law. (Id. ¶¶ 148-57.)

Count 14 is brought on behalf of the Florida plaintiffs and a Florida class. It alleges failure to pay minimum wage, in violation of Florida law. (Id. ¶¶ 158-62.)

Count 15 is brought on behalf of the ERISA class. It alleges that RBC caused class members to forfeit all income within an ERISA deferred compensation plan upon termination of employment, in violation of ERISA and California law. (Id. ¶¶ 163-70.)'

On May 13, 2009, 2009 WL 1346150, the Court denied RBC’s motion for judgment on the pleadings on the fifteenth cause of action, concluding that, for purposes of the motion, plaintiffs’ allegations identified defendants who allegedly qualified as ERISA fiduciaries with respect to the disputed plan. (Docket No. 109.) The Court also found that the complaint adequately pled a claim that was not barred by ERISA’s exhaustion requirement. (Id.)

On June 26 and July 14, 2009, RBC filed motions for summary judgment against the ten individual plaintiffs. (Docket No. 114 (Grattan); Docket No. 119 (Roque); Docket No. 124 (Pazos); Docket No. 129 (Capozzoli); Docket No. 133 (Cruz); Docket No. 139 (Alvarez); Docket No. 150 (Blumberg-Markus); Docket No. 155 (David); Docket No. 160 (Kuhlman); Docket No. 183 (Kennedy).) On July 7, 2009, plaintiffs filed a motion to conditionally certify a collective action and to facilitate notice to potential plaintiffs. (Docket No. 171.) On July 31, 2009, plaintiffs filed a motion for certification of a California class, a New York class, a Florida class, and an ERISA class. (Docket No. 201.)

ANALYSIS

I. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. FLSA Claims (Counts 1 and 2)

The FLSA includes federal minimum wage and overtime provisions. The FLSA currently provides a minimum wage of $7.25 per hour. 29 U.S.C. § 206. The minimum wage was $5.85 as of July 24, 2007, increased to $6.55 on July 24, 2008, and increased to $7.25 on July 24, 2009. Id. § 206(a)(1). The FLSA also states that if an employee works more than forty hours per week, the employer must provide compensation for the hours in excess of forty “at a rate not less than one and one-half times the regular rate at which” the employee is employed. Id. § 207(a)(1). The FLSA exempts several categories of workers from federal minimum wage and overtime requirements. Section 13(a)(1) of the FLSA creates an exemption from the minimum wage and overtime requirements for “any employee employed in a bona fide executive, administrative, or professional capacity ... (as such terms are defined and delimited from time to time by regulations of the Secretary [of Labor] ...).” Id. § 213(a)(1).

1. The FLSA Written Consent Requirement for Collective Actions

Section 216(b) of Title 29 establishes a federal cause of action for employees who allege that their employer has violated the FLSA, but it requires each plaintiff to file written consent with the court. It states that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. § 216(b).

Written consent is compulsory in FLSA collective actions such as this one. As the Seventh Circuit has recognized, each plaintiff in an FLSA collective action must give consent in writing and file that consent with the court:

The statute is unambiguous: if you haven’t given your written consent to join the suit, or if you have but it hasn’t been filed with the court, you’re not a party. It makes no difference that you are named in the complaint, for you might have been named without your consent. The rule requiring written, filed consent is important because a party is bound by whatever judgment is eventually entered in the case, and if he is distrustful of the capacity of the “class” counsel to win a judgment he won’t consent to join the suit. We are inclined to interpret the statute literally. No appellate decision does otherwise.

Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir.2004). Other courts have also recognized that “[t]he statutory language is clear. When plaintiffs have filed a ‘collective action,’ under § 216(b), all plaintiffs, including named plaintiffs, must file a consent to suit with the court in which the action is brought.” Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1132-33 (D.Nev.1999) (footnote omitted). The complaint itself is not sufficient, even if it names the particular plaintiff. See Harkins, 385 F.3d at 1101; Bonilla, 61 F.Supp.2d at 1132.

Plaintiffs contend that courts have not required named plaintiffs to make additional filings to formally “opt in” to their own collective actions, but the cases plaintiffs cite draw a distinction between putative collective actions, in which formal written consent filings are required, and individual or joint actions, in which such filings are not required. (See, e.g., Pl. Grattan’s Resp. to Def.’s Mot. for Summ. J. at 34, Docket No. 217.) See Allen v. Atl. Richfield Co., 724 F.2d 1131, 1135 (5th Cir.1984) (“[Ojther courts have held that named individuals who jointly filed suit under the FLSA were not required to file written consents with the court. We conclude that parties named in a suit, who have hired a lawyer to file a complaint on their behalf, have clearly indicated their consent to suit. The statute does not require additional time-and-resource-eonsuming filings.” (citations omitted; emphasis added)); Bonilla, 61 F.Supp.2d at 1133 (“By contradistinction, a suit which consists of a number of individual actions joined under Rule 20(a) of the Federal Rules of Civil Procedure is not a ‘collective action,’ and plaintiffs need not file a consent to suit in order to commence the action.” (emphasis added)). In Allen v. Atlantic Richfield Co., for example, the court emphasized that the plaintiffs had brought individual claims and sought individual relief, and that none of the plaintiffs ever sought to represent others. 724 F.2d 1131, 1135 (5th Cir.1984). The court concluded that the written consent requirement did not apply because “the action never evolved into a collective or class action.” Id.

Most of the plaintiffs in this case have always raised their FLSA claims against RBC as part of a collective action, rather than as individual or joint claims. (See Compl. ¶ 2, Docket No. 1 (“This is a nationwide collective action[.]”); Am. Class/Collective Action Compl. ¶ 2, Docket No. 27 (“This is a nationwide collective action[.]”); Consolidated Am. Compl. ¶ 2, Docket No. 43 (“This is a nationwide collective action[.]”); Second Consolidated Am. Compl. ¶ 2, Docket No. 77 (“This is a nationwide collective action[.]”).) See also Compl. at 4, Capozzoli v. RBC Dain Rauscher, Inc., No. 07-11200 (S.D.N.Y. Dec. 12, 2007) (“Class and Collective Action Allegations”); Compl. at 4, Pazos v. RBC Dain Rauscher, Inc., No. 08-20588 (S.D.Fla. Mar. 6, 2008) (“Class/Collective Action Allegations”).

David and Kennedy are two possible exceptions. Their original complaints, which were initially filed in state court, were putative class actions, but they were not putative collective actions. See Class Action Compl., Docket No. 46, Attachment No. 2, David v. RBC Dain Rauscher, No. 06-4402 (D.Minn. Nov. 3, 2006); Class Action Compl., Docket No. 16, Attachment No. 1, Kennedy v. RBC Dain Rauscher, No. 07-500 (D.Minn. Jan. 26, 2007). Therefore, David and Kennedy arguably had no obligation to file a formal written consent in those cases. But see 29 U.S.C. § 216(b) (“An action to recover the liability [under the FLSA] ... may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”) Nonetheless, their claims have “evolved into a collective ... action” because after the cases were transferred and consolidated, some of the named plaintiffs “came forward and filed a written consent to the suit, asking to be made a party plaintiff.” Cf. Allen, 724 F.2d at 1135. Therefore, in order to “preserve [their] right of action in the collective case,” Smith v. Cent. Sec. Bureau, Inc., 231 F.Supp.2d 455, 476-77 (W.D.Va.2002) (emphasis added), David and Kennedy must file a written consent with this Court.

Eight of the ten individual plaintiffs, including Kennedy, have filed a formal written consent with the Court. On July 16, 2009, Alvarez, Capozzoli, Cruz, Grattan, Kuhlman, Pazos, and Roque filed their written consents with the Court. (Docket Nos. 191, 193.) Capozzoli’s consent form is dated October 16, 2007, but it appears that she did not file that consent with the United States District Court for the Southern District of New York. (See Docket No. 191 at 4.) The Court has examined the docket in that case and cannot find any indication that the consent was filed there prior to transfer. See Capozzoli v. RBC Dain Rauscher, Inc., No. 07-11200 (S.D.N.Y. Dec. 12, 2007). Therefore the Court concludes that Capozzoli first filed her consent on July 16, 2009. On July 22, 2009, Kennedy filed a written consent with this Court. (Docket No. 195.)

The Court is unable to identify in the record any written consent filed by Blumberg-Markus or David. Blumberg-Markus did not bring her FLSA claims in any other court. Her FLSA claims have always been part of the putative nationwide collective action that is before this Court, and she has not filed a written consent with this Court. As noted above, David first filed his claim in California state court, and RBC removed the action to the Central District of California. The Court has examined the docket in David v. RBC Dain Rauscher, No. 06-5941 (C.D.Cal. Sep. 18, 2006), and sees no evidence of a written consent filed with that court. Nor has David filed a written consent with this Court.

Blumberg-Markus has not filed a written consent with the Court, and she therefore has not preserved any right of action under the FLSA. Blumberg-Markus initiated her FLSA claims in this Court on May 24, 2007, when she was named as a plaintiff in the consolidated amended complaint, which identifies the complaint as “a nationwide collective action.” (Consolidated Am. Compl. ¶ 2, Docket No. 43.) Therefore, the FLSA prohibits Blumberg-Markus from being a party to the FLSA portion of this action. Blumberg-Markus may, however, file a written notice of consent that could reinstate her FLSA claims as part of the collective action. As discussed below, however, her FLSA claims would be time-barred, and she does not object to RBC’s motion for summary judgment on her FLSA claims.

Because David has not filed a written consent with the Court, he does not seem to have preserved his right of action in this collective action. At no time since RBC removed David’s case from state court has David asserted any individual claims. Rather, he has become a plaintiff in a putative FLSA collective action. He is a named plaintiff in the consolidated amended complaint filed on May 24, 2007, and in the second consolidated amended complaint filed on August 6, 2008. Both complaints specifically allege that they are putative nationwide collective actions. David therefore seems to have abandoned any individual FLSA claims he may have raised in state court. David may, however, file a written notice of consent that could possibly reinstate his FLSA claims as part of the collective action. Moreover, it is unclear whether the filing of David’s class action complaint in state court tolled the statute of limitations and, if so, when his obligation to file a written consent attached. For reasons discussed below, the Court defers resolution of this issue.

2. The Statute of Limitations for FLSA Claims

Written consent determines not only whether an individual may be a plaintiff in an FLSA collective action, but also whether FLSA claims that are part of a collective action are barred by the statute of limitations. The statute of limitations for violations of the FLSA is two years “after the cause of action accrued, ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255. Section 256 governs when an action is commenced for an individual claimant who is party to a collective or class action: “[I]n the case of a collective or class action instituted under the” FLSA, the action

shall be considered to be commenced in the case of any individual claimant—

(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or

(b) if such written consent was not so filed or if his name did not so appear — on the subsequent date on which such written consent is filed in the court in which the action was commenced.

Id. § 256; see also Bonilla, 61 F.Supp.2d at 1132-33 (“Although the consents may be filed after the complaint, the action is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed.”); Perella v. Colonial Transit, Inc., 148 F.R.D. 147, 149 (W.D.Pa. 1991) (“The statutory language makes clear that the filing of the consent may come after the filing of the complaint, but that a claim is not asserted, for purposes of the statute of limitations, until both the complaint and the claimant’s individual written consent are filed.”).

None of the individual plaintiffs filed written consent on the date the complaint was filed. Therefore, for purposes of the FLSA statute of limitations, the FLSA claims commenced for Alvarez, Capozzoli, Cruz, Grattan, Kuhlman, Pazos, and Roque on July 16, 2009, and for Kennedy on July 22, 2009. Assuming for purposes of summary judgment that plaintiffs will be able to show that RBC acted willfully, any claims that accrued prior to July 2006 are time-barred.

Alvarez, Capozzoli, Cruz, Grattan, Kennedy, Kuhlman, Pazos, and Roque were employed at RBC prior to July 2006 but continued to be employed there after July 2006, and therefore their claims are partially but not entirely time-barred. Blumberg-Markus, however, stopped working for RBC in December 2002, and therefore her FLSA claims are entirely time-barred. (See Blumberg-Markus Dep. at 32.) David stopped working for RBC in June 2005, and therefore, even if David were to file written consent immediately, his FLSA claims in the collective action would appear to be entirely time-barred. As discussed above, however, on July 27, 2006, David filed a complaint in California state court, and that complaint was not a putative collective action. The parties have not addressed when David’s claim commenced or whether he may maintain any individual FLSA claims alongside this collective action, particularly in light of the fact that David’s original claim was a class action and the Court has now denied plaintiffs’ motion for class certification. The Court defers resolution of the issue of whether David’s FLSA claims are time-barred.

3. FLSA Regulations Governing White Collar Exemptions

As mentioned above, the FLSA exempts from minimum wage and overtime requirements “any employee employed in a bona fide executive, administrative, or professional capacity” 29 U.S.C. § 213(a)(1). FLSA regulations also exempt “highly compensated employees,” defined as employees who have “total annual compensation of at least $100,000” and who “customarily and regularly perform[ ] any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee.” 29 C.F.R. § 541.601(a).

Part 541 of the Secretary of Labor’s FLSA regulations defines and delimits the exemptions for executive, administrative, professional, computer and outside sales employees. 29 C.F.R. pt. 541. Subpart A contains general regulations, including definitions of certain terms used in the regulations. See id. §§ 541.0 et seq. Subpart C governs administrative employees. See id. §§ 541.200 et seq. Subpart D governs professional employees. See id. §§ 541.300 et seq. Subpart G contains salary requirements for the various exempt categories and adds the exemption for highly compensated employees. See id. §§ 541.600 et seq. Subpart H contains definitions of key terms, including “primary duty” and “customarily and regularly.” See id. §§ 541.700 et seq.

Given the remedial nature of the FLSA, exemptions under the Act are to be “narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); cf. 5 C.F.R. § 551.202(b) (“[FLSA] [exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.” (regulation applicable to civil service employees)). Consistent with this principle, the employer has the burden of establishing that it is entitled to the benefit of an exemption and excused from the general overtime payment provision. Mitchell v. Ky. Fin. Co., 359 U.S. 290, 291, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959); Reich v. Newspapers of New Eng., Inc., 44 F.3d 1060, 1070 (1st Cir.1995); cf. 5 C.F.R. § 551.202(c) (“The burden of proof rests with the agency that asserts the exemption.” (regulation applicable to civil service employees)). “The question of how the [employees] spent their working time ... is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law[.]” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986).

RBC claims that Alvarez falls within the learned professional exemption, that Alvarez, Blumberg-Markus, Capozzoli, Cruz, David, Kennedy, and Kuhlman fall within the administrative exemption, and that Grattan, Kuhlman, Pazos, and Roque fall within the highly compensated employee exemption.

4. Learned Professional Exemption (Subpart D)

RBC argues that Alvarez falls within the learned professional exemption. The FLSA regulations define “[t]he term ‘employee employed in a bona fide professional capacity’ in section 13(a)(1) of the Act” to “mean any employee:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week ..., exclusive of board, lodging, or other facilities; and

(2) Whose primary duty is the performance of work:

(i) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction....

29 C.F.R. § 541.300(a).

FLSA regulations provide this “learned professional exemption” for an employee whose “primary duty” is “the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Id. § 541.301(a). The “primary duty test” for learned professionals consists of three elements: “(1) The employee must perform work requiring advanced knowledge; (2) The advanced knowledge must be in a field of science or learning; and (3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” Id.

The regulations define “work requiring advanced knowledge” to mean “work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.” Id. § 541.301(b).

The phrase “field of science or learning” “includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.” Id. § 541.301(c).

The regulations define the phrase “customarily acquired by a prolonged course of specialized intellectual instruction” to “restrict[ ] the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession.” Id. § 541.301(d). The regulation explains:

The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree.... However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.

Id.

The regulations recognize that “[t]he areas in which the professional exemption may be available are expanding.” Id. § 541.301(f). “As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession.” Id.

On May 25, 2006, RBC hired Alvarez as a Salesperson in the Institutional Sales Department of the Fixed Income Group. (Wells Ex. 77, Docket No. 231.) At the time, Alvarez had ten years of experience in the financial services industry, a Series 7 license, and a Master’s in Business Administration from the University of Miami. (Alvarez Dep. at 24, 112, 128.) RBC required Alvarez to have his Series 7 license within ninety days of hire. (Wells Ex. 77, Docket No. 231.) RBC paid Alvarez a percentage of the gross sales credits from his sales. (Alvarez Dep. at 106.)

Alvarez testified that he performed all seven of the Series 7 critical functions as part of his work at RBC. (Id. at 126.) He testified that he participated in continuing education in order to maintain his Series 7 license. (Id. at 128.) He also testified that he did not think that his MBA was “a requirement” or “g[ave][him] a leg up ... on somebody else that doesn’t have an MBA.” (Id. at 129.) He conceded that his MBA assisted him in working in the industry because it gave him “a very strong, solid fundamental on the financial markets and securities in general,” but he testified that it did not necessarily give him any sort of competitive advantage over registered representatives who did not have an MBA. (Id. at 129-30.)

There is a genuine fact issue as to whether, under the primary duty test in 29 C.F.R. § 541.301(a), any advanced knowledge Alvarez used is “customarily acquired by a prolonged course of specialized intellectual instruction.” Id. § 541.301(a)(3). The Court assumes for purposes of summary judgment that Alvarez satisfies the compensation requirements in § 541.300(a)(1), and that Alvarez satisfies the first two elements of the primary duty test. RBC has failed to show that, as a matter of law, Alvarez’s profession is one “where specialized academic training is a standard prerequisite for entrance into the profession.” Id. § 541.301(d). Viewing the facts in a light most favorable to plaintiffs, much of the specialized knowledge that Alvarez uses in conducting his primary work duties is customarily acquired through on-the-job training and experience. The specialized knowledge acquired for the Series 7 examination does not involve a “prolonged course of specialized intellectual instruction” akin to the specialized instruction required to obtain an advanced degree. A trier of fact could also conclude that the instruction is not “intellectual” but instead simply informs people about the laws, rules, and regulations governing their work. Moreover, Alvarez’s testimony demonstrates that others in his profession did not hold an MBA and that he gained no advantage over them by having this advanced degree. The Court finds that, viewing the facts in a light most favorable to Alvarez, RBC is not entitled to summary judgment on the basis that Alvarez falls within the professional exemption.

5. Administrative Exemption (Subpart C)

RBC argues Alvarez, Blumberg-Markus, Capozzoli, Cruz, David, Kennedy, and Kuhlman fall within the administrative exemption. The FLSA regulations define “[t]he term ‘employee employed in a bona fide administrative capacity’ in section 13(a)(1) of the Act” to mean an employee:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week ..., exclusive of board, lodging or other facilities;

(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

29 C.F.R. § 541.200(a). The Court therefore must examine, for all of the employees alleged to fall within the administrative exemption, their compensation, whether their primary duties are directly related to the management or general business operations of RBC or RBC’s customers, and whether their primary duties include the exercise of discretion and independent judgment. The Court first discusses these requirements and the relevant regulatory language, and then examines whether the seven employees qualify for the exemption.

a. First Requirement: Compensation on a Salary Basis of Not Less than $455 Per Week

Department of Labor regulations govern the types of compensation arrangements that satisfy the first requirement. See id. § 541.604. One means of compensation is payment on a “salary basis.” Id. § 541.602(a). An employee is paid on a salary basis “if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” Id.

So long as “the employment arrangement ... includes a guarantee of at least the minimum weekly-required amount paid on a salary basis,” the employer may also provide the employee with additional compensation, including compensation in the form of a commission on sales. Id. § 541.604(a).

Plaintiffs do not dispute that they earned compensation of at least $455 per week. (See, e.g., Mem. in Supp. of Def.’s Mot. for Summ. J. at 1, Docket No. 116; PI. Grattan’s Resp. to Def.’s Mot. for Summ. J. at 10-17, Docket No. 217.) They argue, however, that most or all of that compensation was based on commissions, and therefore securities brokers were not salaried employees eligible for any exemption. (See, e.g., PI. Grattan’s Resp. to Def.’s Mot. for Summ. J. at 8-9, Docket No. 217.) They argue that any “salary” of $455 per week “must be ‘free and clear,’ without regard to the employee’s productivity.” (Id. at 14.) Because RBC used a “base commission” system that was subject to offsets and adjustments for expenses such as payments for support personnel, business-account expenses, and trading-error charges, they argue that the base commissions were not “free and clear” and could not be considered salary.

The Department of Labor expressly rejected plaintiffs’ “free and clear” argument, and the Court defers to the Department’s interpretation of its regulations. On November 27, 2006, the Department of Labor issued an opinion letter “regarding whether certain ‘registered representatives’ in the financial services industry qualify for the administrative exemption under section 13(a)(1) of the [FLSA] and 29 C.F.R. Part 541.” Dep’t of Labor, Opinion Letter, FLSA2006-43 (Nov. 27, 2006) (“November 2006 Opinion Letter” or “Opinion Letter”). As described in greater detail below, the Opinion Letter discusses the duties of registered representatives and whether registered representatives generally qualify for the administrative exemption.

The Opinion Letter describes a commission model for compensating registered representatives, and concludes that registered representatives who are compensated according to such a model are paid on a salary basis for purposes of satisfying the minimum salary requirement of the administrative exemption. Id. at 2, 6-7. Under that model, the registered representative and the employer split the fees paid by clients, and the “calculation [of compensation] may also take into account certain adjustments for cancelled trades, trade errors, expenses, and other trading-related losses,” but those adjustments do not affect the payment of the guaranteed minimum amount of at least $455 per week. Id. at 2-3. The letter then describes a

reconciliation process between the salary/draw and fee/commission components, ie., the relevant formula for calculating the commissions or fees may take into account the predetermined minimum amounts paid to a registered representative in the current and/or previous pay periods. The formula to calculate commissions may also adjust for cancelled trades, trade errors, expenses and other trading-related losses, which affect only the calculation of commissions but not the payment of the guaranteed minimum amount of at least $455 per week.

Id. at 3. The Opinion Letter notes that this “reconciliation process ... between the formula for calculating excess commissions or fees above the guaranteed predetermined minimum amount does not result in a reduction in the guaranteed predetermined minimum amount paid to the registered representatives.” Id. at 7. “[B]ecause the employment arrangement includes a guarantee of at least the required amount paid on a salary basis, the registered representative’s compensation structure, as described, meets the salary basis requirements for exemption” in § 541.604(a). Id. The Opinion Letter emphasizes that “[w]hat matters is that the employee receives no less than the weekly-required amount as a guaranteed salary constituting all or part of total compensation, which amount is not subject to reduction due to the quality or quantity of the work performed, and that the employee is never required to repay any portion of that salary even if the employee fails to earn sufficient commissions or fees.”

Id. at 7 n. 5. “Provided that these requirements are met, the employee will be considered to be paid ‘on a salary basis’ irrespective of any ... additional sums paid to the employee, such as the amount by which commissions earned for a specific period exceed the total weekly guarantee paid for the same period.” Id. at 8 n. 5. The Opinion Letter recognizes that previous opinion letters had “suggest[ed] that the requirement that a salary basis payment be made ‘free and clear’ is not satisfied under” certain offset plans, and concludes that, “[t]o the extent these ... prior opinion letters are inconsistent with the interpretation of ‘free and clear’ payment on a ‘salary basis’ expressed in this opinion letter, they are hereby withdrawn.” Id. at 7 n. 5.

The Court finds persuasive the Department of Labor’s interpretation of the salary basis requirements under § 541.604(a). “[A]n opinion of the Administrator of the Wage and Hour Division of the Department of Labor has persuasive value if the position of the Administrator is well-considered and well-reasoned.” Fazekas v. Cleveland Clinic Found. Health Care Ventures, Inc., 204 F.3d 673, 677 (6th Cir.2000) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Plaintiffs contend that “[t]he credibility of the November 2006 Department of Labor Opinion Letter is clearly questionable as the author to the Opinion Letter, Paul DeCamp, was still listed as an attorney for Gibson, Dunn & Crutcher on the firm’s website at the time the Opinion Letter was authored. Notably, Gibson, Dunn & Crutcher is a prominent defense firm with an extensive wage and hour practice group.” (Wells Decl. ¶ 7, Docket No. 231.) Plaintiffs further contend that the Opinion Letter is not entitled to any deference because it is based on specific facts presented to the Department, and because it concludes that financial representatives may qualify for the administrative exemption. Plaintiffs do not identify, however, any flaws in the reasoning of the Opinion Letter or any particular reason to find it unpersuasive or inapplicable to the compensation system that RBC used with its securities brokers. The opinions contained in the Opinion Letter are well-considered and well-reasoned, and therefore the Court defers to the Department of Labor’s analysis.

The Court finds that RBC’s method of compensating securities brokers by means of commissions and a guaranteed level of compensation is not substantively distinguishable from the method of compensation described in the Opinion Letter and approved by the Department of Labor. The Court therefore concludes that, to the extent RBC guaranteed that its securities brokers would receive compensation of at least $455 per week, that compensation satisfies the requirements of 29 C.F.R. § 541.200(a)(1) for the administrative exemption.

b. The Term “Primary Duty”

The term “primary duty” appears in the second and third requirements for the administrative exemption. See 29 C.F.R. § 541.200(a)(2)-(3). The regulations define the term primary duty as “the principal, main, major or most important duty that the employee performs.” Id. § 541.700(a). The regulations explain that a “[djetermination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.” Id. In making that determination, courts may consider, among other things:

the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Id.

c. Second Requirement: Primary Duty to Perform Work Directly Related to the Management or General Business Operations of RBC or RBC’s Customers

The second and arguably most contentious requirement for the administrative exemption is that the employee’s “primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.” 29 C.F.R. § 541.200(a)(2). “To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” Id. § 541.201(a). The regulations explain that “[w]ork directly related to management or general business operations includes, but is not limited to, work in functional areas such as ... finance; accounting; ... marketing; research; ... legal and regulatory compliance; and similar activities.” Id. § 541.201(b). This work may be directly related to the management or general business operations of the employer’s own customers. Id. § 541.200(a)(2). “Thus, for example, employees acting as advisers or consultants to their employer’s clients or customers (as tax experts or financial consultants, for example) may be exempt.” Id. § 541.201(c).

d. Third Requirement: Primary Duty Includes Exercise of Discretion and Independent Judgment with Respect to Matters of Significance

The third requirement for the administrative exemption is that the employee’s primary duty must “include[ ] the exercise of discretion and independent judgment with respect to matters of significance.” Id. § 541.200(a)(3).

“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” Id. § 541.202(a). “The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision.” Id. § 541.202(e). Those choices need not be final. “The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action.” Id. “The term ‘matters of significance’ refers to the level of importance or consequence of the work performed.” Id. § 541.202(a).

The regulations provide an unexhaustive list of factors that courts may consider in determining whether an employee exercises discretion and independent judgment with respect to matters of significance:

whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.

Id. § 541.202(b).

e. Regulatory Examples Applicable to the Financial Services Industry in 29 C.F.R. § 541.203(b)

The relevant “[administrative exemption examples” make specific reference to employees in the financial services industry:

Employees in the financial services industry generally meet the duties requirements for the administrative exemption if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer’s financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption.

Id. § 541.203(b).

f. Regulatory Revisions in 2004

Prior to August 23, 2004, somewhat different regulations governed the administrative exemption. These earlier regulations made repeated reference to “customers’ brokers in stock exchange firms.” For example, 29 C.F.R. § 541.201 described three types of employees qualifying as administrative employees. The third type of employee was “[tjhose who perform special assignments,” as provided in § 541.2(c)(3), and the regulation specified that “[t]his classification ... includes employees whose special assignments are performed entirely or partly inside their employer’s place of business,” including “special organization planners, customers’ brokers in stock exchange firms, so-called account executives in advertising firms and contact or promotion men of various types.” 29 C.F.R. § 541.201(a)(3)(ii) (2003) (emphasis added).

In describing what is now the second requirement, which at the time stated that the employee’s primary duty must consist of “[t]he performance of office or nonmanual work directly related to management policies or general business operations of [the employee’s] employer or his employer’s customers,” id. § 541.2(a)(1) (2003), the regulations explained that this requirement is “met by many persons employed as advisory specialists and consultants of various kinds, ... customers’ brokers in stock exchange firms, promotion men, and many others.” Id. § 541.205(c)(5) (2003) (emphasis added). The regulations listed “financial consultants” as a “[t]ypical instance! ]” of bona fide administrative employees performing “important functions as advisers and consultants but [who] are employed by a concern engaged in furnishing such services for a fee.” Id. § 541.205(d) (2003).

In describing what is now the third requirement, which at the time stated that the employee must “customarily and regularly exercise! ] discretion and independent judgment,” id. § 541.2(b) (2003), the regulations stated that this language “contémplatele] ... the kind of discretion and independent judgment exercised by a customer’s man in a brokerage house in deciding what recommendations to make to a customer for the purchase of securities.” Id. § 541.207(d)(2) (2003) (emphasis added).

The Department of Labor promulgated revised rules in 2004. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed.Reg. 22122 (Apr. 23, 2004) (codified at 29 C.F.R. pt. 541). The Department’s guidance accompanying the final rules included a survey of the “growing litigation” in the “financial services industry” regarding the administrative exemption. Id. at 22145. The Department responded to those litigation developments by crafting the examples of exempt financial services employees in § 541.203(b), as discussed in the previous subsection:

The Department agrees that employees whose primary duty is inside sales cannot qualify as exempt administrative employees. However, as found by the John Alden, Hogan and Wilshin courts, many financial services employees qualify as exempt administrative employees, even if they are involved in some selling to consumers. Servicing existing customers, promoting the employer’s financial products, and advising customers on the appropriate financial product to fit their financial needs are duties directly related to the management or general business operations of their employer or their employer’s customers, and which require the exercise of discretion and independent judgment.

Accordingly, consistent with this case law, the final rule distinguishes between exempt and nonexempt financial services employees based on the primary duty they perform.

Id. at 22146. The explanation accompanying the new rules emphasized that “[t]he final rule distinguishes the exempt and nonexempt financial services employees based on the duties they perform, not the identity of the customer they serve. For example, a financial services employee whose primary duty is gathering and analyzing facts and providing consulting advice to assist customers in choosing among many complex financial products may be an exempt administrative employee. An employee whose primary duty is inside sales is not exempt.” Id.

The Department stated that the financial services examples in § 541.203(b) are “consistent with existing section 541.207(d)(2), which provides that ‘a customer’s man in a brokerage house’ exercises discretion and independent judgment ‘in deciding what recommendations to make to customers for the purchase of securities,’ but reflects the modernization of this existing subsection for the 21st Century workforce.” Id.

g. The November 2006 Opinion Letter

The November 2006 Opinion Letter, discussed in Part I.B.5.a in the context of the salary basis requirement, also concludes that registered representatives with certain job duties qualify for the administrative exemption. The Opinion Letter states that these registered representatives work in the “securities/financial services industry” and have a variety of titles, including “account executives, broker-representatives, financial executives, financial consultants, financial advisors, investment professionals, and stockbrokers.” November 2006 Opinion Letter at 1. Their employers require them to “be registered with a self-regulatory organization such as the New York Stock Exchange” or NASD. Id. “To become ‘registered,’ employees must pass a qualification examination, the most common of which is t