Labor & Employment Law Daily Wrap Up, WAGE-HOUR—OVERTIME—S.D.N.Y.: IBM executive assistants didn’t qualify as exempt administrative employees, (Sep 21, 2026)

By Ronald Miller, J.D.

“To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must prove [1] that he performed work for which he was not properly compensated, and [2] that the employer had actual or constructive knowledge of that work.”

A federal district court in New York granted summary judgment against IBM on its contention that the work of executive assistants was excluded from overtime pay under the FLSA’s administrative exemption. Because the employees did not exercise discretion and independent judgment with respect to matters of significance, they were not subject to the administrative exemption. However, IBM was granted its motion for summary judgment against an employee’s claim it failed to pay overtime for time when the employee worked through lunch. The court found that a claim under NYLL § 193 was duplicative of the other overtime claims under the FLSA and NYLL (Burgard v. International Business Machines Corp., No. 24-CV-02885 (PMH) (S.D.N.Y. Sept. 17, 2026)).

From April 16, 2018 through August 26, 2022, the employee worked for IBM as an Executive Administrative Assistant (EAA). EAAs were treated as nonexempt employees, meaning they were eligible for overtime pay. The employee’s duties as an EAA encompassed managing calendars including scheduling meetings and travel; handling expense reimbursements; scanning, typing, filing, and other administrative tasks; and providing support for correspondence and communication. She provided administrative support for various executives.

Overtime hours. The employee worked and was paid for significant amounts of overtime during her tenure at IBM. In March 2022, she was asked to reduce her overtime. According to the employee, management would often schedule trainings during lunch breaks, referred to as “lunch and learns.” She asserted that there were times when she worked through lunch but did not report all of her time worked.

Also in 2022, the employee was informed that she had roughly three times the amount of overtime as other executive administrative assistants over the prior six months. However, she was never told not to record the hours she actually worked.

Overtime claims. The employee asserted claims against IBM for failure to pay overtime under the FLSA and NYLL; failure to pay all wages owed under the NYLL; deductions from wages under the NYLL §193; and inaccurate wage statements under the NYLL.

The parties filed cross-motions for summary judgment. IBM sought dismissal of the employee’s claims and dismissal of the opt-in plaintiffs’ claims. For her part, the employee sought dismissal of IBM’s second affirmative defense—the administrative exemption.

Administrative exemption. As an initial matter, the court considered the employees’ contention that IBM cannot meet its burden of proving EAAs are exempt from overtime pay under the administrative exemption. Here, the court determined that IBM could not meet the third element of the administrative exemption, so that its motion failed.

The administrative exemption “applies to employees (1) who earn a salary of at least $684 per week; (2) ‘[w]hose 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) ‘[w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.’”

The court found that IBM failed to produce sufficient evidence for the third factor. 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.

Here, it was undisputed that the EAAs’ “main job duties are calendar, travel, expenses, administrative tasks, and correspondence/communication support.” While IBM proffered evidence that EAAs exercised some discretion and independent judgment in their job duties, it failed to show that the little discretion and independent judgment they did exercise concerned “matters of significance.” Thus, the EAAs were not subject to the administrative exemption.

Knowledge of unpaid overtime. “To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must prove [1] that he performed work for which he was not properly compensated, and [2] that the employer had actual or constructive knowledge of that work.”

IBM’s principal contention with respect to the employee’s unpaid overtime claims was that it had no knowledge, actual or constructive, that the employee worked overtime hours that went unpaid. However, the court observed that the employee put forth evidence from which a jury could reasonably find that the employer did know she was working overtime for which she was not compensated. According to the employee, IBM regularly scheduled “education” and staff meetings during lunch breaks and managers “joined the education,” and were “aware that [they] were working through lunch....” This evidence was sufficient to create an issue of fact regarding IBM’s knowledge of her unpaid overtime work. Accordingly, IBM was denied summary judgment as to the employee’s claims for relief for unpaid overtime.

Deductions from wages. Finally, the employee argued that IBM made unlawful deductions from wages under NYLL § 193. IBM countered that this claim was duplicative of the employee’s overtime claims. The court agreed with the employer and rejected the employee’s contention that this claim was “not identical to her claims for unpaid overtime because they are premised on different statutes and not subject to the administrative exemption defense.”

According to the employee, IBM engaged in a policy and practice of automatically deducting a 45-minute lunch break from the daily hours worked by EAAs, despite that they routinely worked through their lunch breaks. The employee argued that this unpaid time, to the extent it caused the employee to work more than 40 hours in a given week, would constitute unpaid overtime.

The court concluded that the employee’s unpaid overtime claim for working during her meal breaks was properly included in her unpaid overtime claims and, thus, her Section 193 claim was dismissed as duplicative of those claims.

The case is No. 24-CV-02885 (PMH).

Judge: Halpern, P.

Attorneys: Kara Sue Miller (Virginia & Ambinder) for Cheryl Burgard. Matthew Willis Lampe (Jones Day) for International Business Machines Corp.

Companies: International Business Machines Corporation

Cases: WageHour Overtime Exemptions StateLawClaims ClassActions NewYorkNews