[PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 19-12277 ____________________

PHILIP FOWLER JEFFREY SWANS, Plaintiffs-Appellants, versus OSP PREVENTION GROUP, INC. WILLIAM E MABRY II,

Defendants-Appellees. USCA11 Case: 19-12277 Date Filed: 06/27/2022 Page: 2 of 24

2 Opinion of the Court 19-12277

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Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:17-cv-03911-MHC ____________________

Before ROSENBAUM, LAGOA, and ED CARNES, Circuit Judges. ED CARNES, Circuit Judge:

Philip Fowler and Jeffrey Swans worked as property damage investigators for OSP Prevention Group. It contracts with broad- band service providers to investigate damage to the providers’ in- frastructure and then tries to collect money for them from the peo- ple who caused the damage. After their employment with OSP ended, Fowler and Swans brought Fair Labor Standards Act (“FLSA”) claims against the company and its owner (collectively “OSP”) for unpaid overtime wages. The district court granted summary judgment in OSP’s fa- vor after concluding that Fowler and Swans fit within an FLSA ex- emption covering “administrative” employees. They both contend that they weren’t administrative employees but instead were “pro- duction” employees who performed the core service that OSP sold to its clients: investigating damage to property. I. The Statutory and Regulatory Background USCA11 Case: 19-12277 Date Filed: 06/27/2022 Page: 3 of 24

19-12277 Opinion of the Court 3

The FLSA generally requires employers to pay overtime to covered employees who work more than 40 hours a week, 29 U.S.C. § 207(a), but it exempts certain categories of employees from that requirement, see id. § 213. See also Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1138 (2018). This “administrative exemption” applies to workers who are “employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The employer has the burden of showing that the ex- emption applies. See Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974) (stating that generally “the application of an ex- emption under the Fair Labor Standards Act is a matter of affirma- tive defense on which the employer has the burden of proof”); Diaz v. Jaguar Rest. Grp., LLC, 627 F.3d 1212, 1214–15 (11th Cir. 2010) (describing the administrative exemption as an affirmative defense to an FLSA claim); see also Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 738 (5th Cir. 2020) (“In a FLSA suit for unpaid overtime, the defendant employer bears the burden of proof to establish that an employee falls under an exemption.”). FLSA exemptions must be given a “fair reading” and not a “narrow” one. Encino Motor- cars, 138 S. Ct. at 1142. 1

1 In its order granting summary judgment to OSP, the district court referred to the old rule that FLSA exemptions must be “narrowly construed,” and OSP repeated the old rule in its brief to this Court. Counsel for Fowler and Swans correctly pointed out in their reply brief that regrettably (for their clients) the Supreme Court has held that the old “narrow reading” standard no longer ap- plies. Encino Motorcars decision. See 138 S. Ct. at 1142. USCA11 Case: 19-12277 Date Filed: 06/27/2022 Page: 4 of 24

4 Opinion of the Court 19-12277

The requirements for establishing that a person is an “ad- ministrative employee” ar