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Mortgage underwriters entitled to overtime, 9th Circuit rules

Mortgage underwriters entitled to overtime, 9th Circuit rules

In an issue that has created a split among federal appeals courts, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court ruling and held Wednesday that mortgage underwriters are entitled to overtime.

Gina McKeen-Chaplin, who had worked for Riverside, California-based Provident Savings Bank FSB from May 2012 through October 2012, had filed a putative class action lawsuit in U.S. District Court in Sacramento, California, seeking a determination that mortgage underwriters are entitled to overtime pay under the Fair Labor Standards Act, according to court papers in Gina McKeen-Chaplin et al. v. Provident Savings Bank FSB, and Does 1-50, inclusive.

The District Court conditionally certified an opt-in class of current and former mortgage underwriters at Provident. But it granted the bank summary judgment dismissing the case, which a unanimous three- judge appeals court panel overturned on appeal.

Among other factors, under the FLSA, employees qualify for an administrative exemption from overtime if their primary duties are “related to the management or general business operations of the employer” or its customers, said the appeals panel.

The 2nd U.S. Circuit Court of Appeals in New York held in a 2009 ruling that mortgage underwriters do not qualify for the administrative exemption because their job “falls under the category of production rather than of administrative work,” said the 9th Circuit ruling.

However, the 6th U.S. Circuit Court of Appeals in Cincinnati held in a 2016 ruling that underwriters are exempt administrators, said the ruling.

The 9th Circuit panel agreed with the 2nd Circuit that the underwriters should be eligible for overtime.

“Provident’ s mortgage underwriters do not decide if Provident should take on risk, but instead assess whether, given the guidelines provided to them from above, the particular loan at issue falls within the range of risk Provident has determined it is willing to take,” said the ruling.

“Assessing the loan’s riskiness according to relevant guidelines is quite distinct from assessing or determining Provident’ s business interests. Mortgage underwriters are told what is in Provident’s best interest, and then asked to ensure that the product being sold fits within the criteria set by others,” said the ruling.

The panel reversed the District Court’s grant of summary judgment in favor of Provident and remanded the case with instructions to enter summary judgment in favor of Ms. McKeen-Chapin and the mortgage underwriters.

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