Again we have our friends at WaWa, Inc. to thank for obtaining a Federal Election Commission Advisory Opinion (AO 2012-2) elaborating on the definition of “executive and administrative personnel” for purposes of defining those individuals eligible for PAC solicitations.
The company sought guidance with respect to Area Managers (AM’s) and General Managers (GM’s). General Managers report to Area Managers. General Managers are the actual store managers. A typical AM will have as many as 17 GM’s reporting to him/her. All AM’s and GM’s are salaried employees. An AM’s principal duties include: (1) leading, coaching, mentoring, and facilitating the development of the GM’s; (2) workforce planning; (3) developing, implementing, and maintaining operational plans to maintain corporate standards; (4) ensuring compliance with corporate policy and procedures and with local, State and Federal regulations; (5) resolving crisis situations; (6) analyzing financial statements and developing action plans with General Managers; and (7) participating in the budgeting process. AM’s can “hire and fire” and have a say in pay and promotion decisions. A GM’s principal duties include (1) supervising the day-to-day work, and performance of, store employees; (2) managing all matters relating to employees, including recruiting, hiring, training, coaching, and managing their performance; (3) ensuring that store employees follow all safety, security, quality, and store operations policies, procedures and practices; (4) “analyzing results and trends and preparing action plans to leverage the store’s strengths and address areas of opportunity”; (5) planning and preparing employees’ work schedules and coordinating their daily assignments; and (6) “executing strategy through planning.” The Act and Commission regulations define “executive or administrative personnel” as individuals who are employed by the corporation, are paid on a salaried basis, and have “policymaking, managerial, professional, or supervisory responsibilities.” In this particular situation, the Commission concluded that Area Managers and General Managers are division or section managers who “run the corporation’s business.” 11 CFR 114(c)(1).
Other key indices cited in the Opinion include: “authority to hire and fire,” “evaluate the performance of subordinates” and “closely supervise the day to day work of (many) store employees.”
In its summation the Commission states: “Area and General Managers both exercise the kind of discretion and independent judgment that the FLSA (Fair Labor Standards Act) regulations attribute to managers. The Area Managers formulate, affect, interpret, and implement management policies or operating practices; carry out major assignments in conducting the operations of the business; perform work that affects business operations to a substantial degree; and plan long- and short-term business objectives. The General Managers interpret and implement management policies and operating practices; perform work that affects business operations to a substantial degree; and help to plan long- and short-term business objectives, See, e.g. 29 CFR 541.202.
The decision where to draw the lines for PAC eligibility isn’t an easy one. This Opinion should be of some help, although it’s important to keep in mind it is based on facts and circumstances applicable to that particular company and any reliance on the Opinion must be based on your situation which must be “indistinguishable in all material aspects…”
Again, much appreciation goes to WaWa for pursuing this important topic. We have discussions with our clients regularly about the make-up of the Restricted Class. Let us know if we can be of similar assistance to your PAC.