Janice MORGAN, Barbara Richardson, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Appellees, v. FAMILY DOLLAR STORES, INC., Defendant-Appellant, 551 F.3d 1233

HULL, Circuit Judge: The Court sua sponte issues this corrected opinion. An opt-in class of 1,424 store managers, in a collective action certified by the district court, sued Family Dollar Stores, Inc. (“Family Dollar”) for unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219. During an eight-day trial, the Plaintiffs used Family Dollar’s payroll records to establish that 1,424 store managers routinely worked 60 to 70 hours a week and to quantify the overtime wages owed to each Plaintiff.

Family Dollar focused on its affirmative defense that the store managers were executives within the meaning of the FLSA and exempt from its overtime pay requirements. The jury found that the Plaintiff store managers were not exempt executives and that Family Dollar had willfully denied them overtime pay. The jury awarded $19,092,003.39 in overtime wages. The court entered a final judgment of $35,576,059.48 against Family Dollar consisting of $17,788,029.74 in overtime wages and an equal amount in liquidated damages.

Because of the complex procedural history from 2001 to 2005 that led to the case being certified as a collective action, the subsequent eight-day trial in 2006, and Family Dollar’s myriad challenges on appeal, we preface the opinion with a table of contents: I.PROCEDURAL HISTORY FROM 2001-2005 .1241 A. Complaint.1241 B. April 2001 Motion to Facilitate Nationwide Notice.1242 C. October 2001 — Second Motion to Facilitate Nationwide Notice.1242 D. July 2002 Notice.1242 E. October 2002 — Third Motion to Facilitate Nationwide Notice.1242 F. November 2002 Order and Fact Findings.1243 G.

December 2002 Notice to Potential OpVIns.1243 H. Discovery Disputes.1243 I. May 2004 Motion to Decertify the Collective Action.1245 J. January 2005 Order and Fact Findings.1246 K. First Jury Trial.1247 II.SECOND JURY TRIAL IN 2006.1247 A. Corporate Structure.1248 B. Store Managers.1248 C. Family Dollar Executives .1251 D. District Managers.1254 E. Salary Compared to Hourly Wages.1257 F. Judgment/Verdict.1258 III. DECERTIFICATION.1258 A. FLSA’s Similarly Situated Requirement.1258 B. Two-Stage Procedure for Determining Certification.1260 C.

District Court’s Denial of Decertification.1262 IV.EXECUTIVE EXEMPTION DEFENSE.1265 A. FLSA’s Executive Exemption.1265 B. Primary Duty Is Management.1266 C. Family Dollar’s Motion for Judgment as a Matter of Law.1269 D. Other Circuits’ Cases.1271 E. 163 Individual Plaintiffs Granted Judgment on Executive Exemption Defense.1273 V. REPRESENTATIVE TESTIMONY .1276 VI. WILLFULNESS AND LIQUIDATED DAMAGES .1280 A. Willful Violation.1280 B. Good Faith and Liquidated Damages .1282 VII. JURY INSTRUCTIONS.1283 VIII. CONCLUSION.1285 I. PROCEDURAL HISTORY FROM 2001-2005 A.

Complaint Family Dollar is a nationwide retailer that operates over 6,000 discount stores that sell a wide assortment of products, including groceries, clothing, household items, automotive supplies, general merchandise, and seasonal goods. In January 2001, Janice Morgan and Barbara Richardson, two store managers, filed a Complaint on behalf of themselves “and all other similarly situated persons,” alleging that Family Dollar willfully violated the FLSA by refusing to pay its store managers overtime compensation.

The first Complaint asserted that Family Dollar paid store managers a salary, required them to work 60 to 90 hours a week, and refused to compensate them for overtime. According to Plaintiffs, store managers are managers only in name and actually spend the vast majority of their time performing manual labor, such as stocking shelves, running the cash registers, unloading trucks, and cleaning the parking lots, floors, and bathrooms. Store managers spend only five to 10 hours of their time managing anything.

Plaintiffs sought unpaid benefits, overtime compensation, and liquidated damages due to Family Dollar’s willful FLSA violations. The Complaint urged the district court to issue notice of the action to all similarly situated Family Dollar employees nationwide, and to inform them of their right to opt into the suit as a collective action. Plaintiffs relied on 29 U.S.C. § 216(b), which authorizes courts to maintain a case as one collective action so long as the employee-plaintiffs are similarly situated. Family Dollar’s Answer raised a number of affirmative defenses.

It asserted that its store managers were exempt executives and denied any violations were willful. Family Dollar also argued that a collective action, under § 216(b), was impermissible because (1) the store managers were not similarly situated,

(2) Plaintiffs’ claims were not representative of others in the group, and

(3) Plaintiffs could not satisfy § 216(b)’s requirements for maintaining a collective action. In May 2001, Plaintiffs filed their Third Amended Complaint on behalf of Morgan and Richardson, and added Cora Cannon and Laurie Trout-Wilson as Plaintiffs. The Third Amended Complaint raised the same claims for overtime pay and, again, urged the district court to notify other similarly situated store managers of the action. B.

April 2001 Motion to Facilitate Nationwide Notice In April 2001, Plaintiffs moved the district court to (1) certify the case as a collective action, (2) authorize notice “by first class mail to all similarly situated management employees employed by Family Dollar Stores, Inc. at any time during the three years prior to the filing of this action to inform them of the nature of the action and their right to opt-into this lawsuit,” and (3) order Family Dollar to “produce a computer-readable data file containing the names, addresses, Social Security number and telephone numbers of such potential opt-ins so that notice may be implemented.” In May 2001, the court denied the motion for immediate notice, but indicated the motion was “overruled without prejudice.” In September 2001, the district court issued a scheduling order pursuant to Rule 16(b).

The order indicated that the parties mutually agreed to “an initial period of discovery limited to identification of claims and their factual basis,” and that, despite Family Dollar’s opposition, Plaintiffs would request the court to facilitate notice on or before February 2002. Discovery was to expire on October 1, 2002. C. October 2001 — Second Motion to Facilitate Nationwide Notice In October 2001, Plaintiffs renewed their motion to facilitate notice. Family Dollar twice opposed Plaintiffs’ motion and urged the district court to delay ruling to allow more discovery.

At oral argument in April 2002, the court withheld ruling pending additional discovery by Family Dollar, and ordered Plaintiffs’ counsel to make all named Plaintiffs available for deposition. In April 2002, before the court ruled on the renewed motion, the parties jointly agreed to send limited notice of the suit to current and former store managers that worked in the regions where the named Plaintiffs worked from July 1, 1999 to the present. As a result, the court denied Plaintiffs’ October 2001 motion as moot. D.

July 2002 Notice In July 2002, the parties notified 784 potential class members in Region 4 (which contains 15 Family Dollar districts in Alabama, Mississippi, Louisiana, Georgia, and Tennessee), district 39 (in Georgia), and district 118 (in New York). The jointly-sent notices required the recipients to mail their consent forms by October 22, 2002. In August 2002, the court extended the discovery deadline by 120 days. By October 2002, 142 store managers from different states had filed consent forms.

Plaintiffs’ counsel subsequently sent each of those store managers an 11-page questionnaire with 17 questions and 75 total subparts. The questionnaire asked about employment dates, weekly work hours, day-to-day duties, amount of hours spent on manual labor, what independent authority store managers had, whether district managers made all important managerial decisions, whether hourly assistant managers performed the same duties, and a host of other questions relating to Family Dollar store operations.

E.October 2002 — Third Motion to Facilitate Nationwide Notice In October 2002, Plaintiffs renewed their motion to facilitate nationwide notice. Plaintiffs’ motion estimated that approximately 11,164 current or former store managers had no notice of the action and that, based on the approximately 20% response rate, a sizeable number of potential class members would opt into the suit. Plaintiffs’ motion and counsel’s affidavit summarized the responses to the 11-page questionnaire.

Plaintiffs argued that the opt-ins’ responses showed that the store managers were similarly situated and that there were enough initial responses to warrant nationwide notice. Plaintiffs also offered the Rule 30(b)(6) deposition testimony of Bruce Barkus, the Executive Vice President of Store Operations at Family Dollar.

Barkus admitted that the store manager job description is the “current and only job description[ ] for Family Dollar Store Managers,” and acknowledged that Family Dollar made no inquiry into how many hours a week store managers actually work or whether store managers’ actual day-to-day duties mirror the ones outlined in the job description. Plaintiffs argued that Barkus’s testimony bolstered the questionnaire responses that showed store managers spent 90% of their time on manual tasks.

F.November 2002 Order and Fact Findings In November 2002, the district court, acting pursuant to § 216(b), granted Plaintiffs’ motion to facilitate nationwide class notice to “all former and current Store Managers who work and/or worked for the Defendant over the last three years.” The court found Family Dollar’s store managers were similarly situated within the meaning of § 216(

b) because they: (1) worked 60 to 80 hours a week; (2) received a fixed salary and no overtime pay; (3) spent 75 to 90% of their time on non-managerial tasks such as stocking shelves, running the cash registers, unloading trucks, and performing janitorial duties; (4) did not consistently supervise two or more employees; (5) lacked the authority to hire, discipline, or terminate employees without first obtaining permission from their district managers; (6) could not select outside vendors without their district managers’ permission; (7) worked no less than 48 hours a week under the threat of pay cuts or loss of leave time; and (8) arrived at work before the store opened and stayed until after closing.

Although the district court acknowledged that there existed “some differences between the named-Plaintiffs and the opt-ins in terms of pay scale and job duties,” it concluded that “these differences do not preclude the facilitation of nationwide service.” The court stressed that Plaintiffs must only be “similarly situated” — not “identically situated.” The court considered Family Dollar’s contention that its stores have “different locations, are of various sizes, and sell different volumes of merchandise.” But the court found that those differences did not undermine the factual basis for concluding that Family Dollar’s store managers were similarly situated.

The court emphasized that it had the benefit of making its decision after twenty months of litigation, considering Plaintiffs’ motion to facilitate nationwide notice on two previous occasions, and giving Family Dollar an opportunity to depose the named Plaintiffs. The court found that a sufficient number of similarly situated employees likely were interested in joining the suit and that the case could be managed and resolved in a single litigation. G.

December 2002 Notice to Potential Opt-Ins In December 2002, Plaintiffs’ counsel mailed 12,145 notices nationwide to current and former Family Dollar store managers employed on or after July 1, 1999. Each had until February 25, 2003 to return the enclosed consent forms. Each mailing included the 11-page questionnaire. By March 2003, nearly 2,500 current and former Family Dollar store managers had joined the litigation. H. Discovery Disputes Throughout the litigation, the district court resolved scores of discovery-related motions.

For example, Plaintiffs refused to turn over certain questionnaire responses based on attorney-client privilege. This triggered various motions to compel. In another instance, Family Dollar refused to provide Plaintiffs with information related to the identity of its district managers. Plaintiffs responded with their own motions to compel. Meanwhile, a fight over depositions was brewing. In March 2003, Family Dollar notified Plaintiffs of its intent to depose, either in person or by-written questions, all opt-in Plaintiffs. The court extended discovery until August 29, 2003.

And in June 2003, in a comprehensive order, the court (1) required Plaintiffs’ counsel to produce the questionnaire responses used to support Plaintiffs’ motion to facilitate nationwide notice; (2) ordered Family Dollar to produce the names, addresses, and telephone numbers of all former Family Dollar district managers since June 1999; (3) prohibited Plaintiffs’ counsel from engaging in ex parte communication with former Family Dollar district managers; and (4) clarified that “this Court shall ... treat each opt-in Plaintiff as a separate party for purposes of enforcement of the Scheduling Order.” Discovery issues continued to surface.

The court again extended deadlines for discovery to December 12, 2003, and for dispositive motions to January 12, 2004. In October 2003, Family Dollar informed Plaintiffs that it intended to depose all remaining opt-in Plaintiffs, using written questions, pursuant to Rule 31. In November 2003, Family Dollar’s counsel sent a letter stating it planned to take 2,100 depositions in seven days, using 338 written questions per deponent, from December 6 to 12, 2003, in Birmingham.

Plaintiffs moved for protective orders to limit the number of depositions to two a day until the end of discovery and to prevent Family Dollar from deposing the nearly 2,100 opt-in Plaintiffs. Plaintiffs’ motion noted that discovery had been ongoing for two and a half years, and that prior to October 2003, Family Dollar failed to depose any of the opt-in Plaintiffs. Plaintiffs objected to Family Dollar’s attempt to depose 2,100 opt-in Plaintiffs during the last 29 days of discovery as burdensome, unreasonable, and expensive.

In November 2003, Family Dollar moved for a protective order, prohibiting disclosure of the written deposition questions to the opt-in Plaintiffs. In January 2004, the district court issued a discovery management order resolving many issues. The court limited Family Dollar to “not more than” 250 depositions of the opt-in Plaintiffs, “including those who [had] already been deposed.” The court did not restrict Family Dollar to written questions, but limited depositions to five per day (each three hours long). The order authorized Plaintiffs to select 250 opt-ins for Family Dollar to depose in-person.

The court pushed the discovery deadline back to April 12, 2004, with dis-positive motions due May 12, 2004. It denied both parties’ motions for protective orders as moot. In late January 2004, Family Dollar moved to clarify or alter the discovery management order. In early February 2004, the district court denied Family Dollar’s request to depose the rest of the opt-in Plaintiffs under Rule 31 (written deposition questions), but granted Family Dollar leave to use Rule 33 (interrogatories) to obtain discovery from the remaining opt-in Plaintiffs.

In March 2004, the court issued an order clarifying that Family Dollar was entitled to serve 25 interrogatories on every opt-in Plaintiff. By mid-February 2004, 152 opt-in Plaintiffs (of the 250) had not been deposed in-person. The court gave Plaintiffs’ counsel seven days to provide Family Dollar with a list of the remaining 152 opt-in Plaintiffs and the dates that each would be available for deposition in Birmingham.

To ensure Family Dollar had an opportunity to depose the remaining 152 opt-in Plaintiffs in Birmingham, the district court, in late February 2004, also ordered Plaintiffs’ counsel to provide Family Dollar with three days notice of any change in scheduled depositions, and threatened to dismiss opt-in Plaintiffs who failed to attend. For the next several months, the court dismissed with prejudice various opt-in Plaintiffs for their failure to appear at depositions in Birmingham. By the end of discovery, Family Dollar deposed, in person, 250 opt-in Plaintiffs and the named Plaintiffs.

In addition to the 250 depositions of the opt-in Plaintiffs, the parties deposed Family Dollar’s executives, district managers, various experts, and other witnesses. Family Dollar produced voluminous payroll records, store manuals, emails, and other communications. Plaintiffs produced the individual responses to the questionnaire. The record was fully developed before the next critical step in this case. I. May 200k Motion to Decertify the Collective Action In May 2004, Family Dollar moved to decertify the collective action under § 216(b).

Relying on affidavits and a wealth of information revealed during discovery, the parties briefed whether the case should proceed as 1,424 individual actions or as a § 216(

b) collective action. Family Dollar argued (1) the opt-in Plaintiffs were not similarly situated under the FLSA, because their day-to-day job duties were too different; (2) the executive exemption defense is inherently individualized; and (3) discrepancies in the store managers’ duties made a collective trial impossible and unfair.

In response, Plaintiffs pointed out that discovery established that all store managers were similarly situated because they (1) have the same job description, (2) spend 75 to 90% of their time on the same non-management duties, and (3) spend little time on the management duties in their job description.

In addition to Barkus’s testimony, Plaintiffs emphasized the deposition testimony of two other Family Dollar executives, Bill Broome and Dennis Heskett, indicating that Family Dollar applied the overtime exemption across the board without any consideration of store-by-store variables, and that store size and location did not affect Family Dollar’s decision to exempt all store managers from overtime pay requirements. J.

January 2005 Order and Fact Findings In a January 2005 order, the district court denied Family Dollar’s motion to decertify, determined that none of the factual findings in its November 2002 order had been called into question, and made additional fact-findings. The court’s order also expressly incorporated those 2002 findings by reference.

In addition, the court found that the “evidence eonfirm[ed] that substantial similarities exist in the job duties of the named and opt-in Plaintiffs.” The court found that 90% of the named and opt-in Plaintiffs (1) interview and train employees, (2) direct work of employees, and (3) maintain production and sales records. The court also found that the named and opt-in Plaintiffs had similar restrictions on the scope of their responsibilities.

Although classified as store managers, they lacked independent authority to hire, promote, discipline, or terminate assistant managers; award employees pay raises; or change weekly schedules of hourly employees. And 90% lacked the power to close the store in an emergency without the district manager’s permission. The court concluded that none of the named and opt-in Plaintiffs were responsible for the “total operation of their stores,” and that, in reality, district managers performed the relevant managerial duties.

The court found: [m]uch of the management discretion which would ordinarily be exercised by store managers is exercised by the district management pursuant to corporate policies and practices set at headquarters. The store managers are very closely supervised by the district managers. In terms of managerial duties, the district manager is more directly responsible for the operation of a Family Dollar store than the store manager. The court also determined that Plaintiffs similarly spent their time between managerial and non-managerial duties.

It found that most (90%) of the named and opt-in Plaintiffs (1) “spend only a small fraction of their time performing managerial duties”; (2) “spend the vast majority of their time on essentially non-managerial duties such as unloading trucks, stocking shelves, working as cashiers, and performing janitorial duties”; and (3) shared some of their managerial duties with nonexempt, hourly employees (ordering merchandise, controlling store keys, opening and closing the store, depositing money in banks, and approving checks, refunds, and returns).

Viewing the evidence “as a whole,” the court found that (1) the primary duties of Plaintiffs were not managerial; (2) the time spent performing non-managerial duties did not significantly differ from store to store, district to district, or region to region; and (3) the relative importance of the non-managerial duties (as compared to the limited number of managerial duties) did not vary significantly depending on the store or district.

Further, “the basic pay rates of the named and opt-in Plaintiffs are also similar,” in that Family Dollar paid “all of its store managers a base salary regardless of the weekly hours they work.” The court determined that Family Dollar’s defenses were not so individually tailored to each Plaintiff that a collective action would be unmanageable. Because substantial similarities existed in the Plaintiffs’ job duties, and the same policies and procedures applied to each store, the court concluded that the case could be fairly tried as a collective action. K.

First Jury Trial In February 2005, the court entered a pretrial order summarizing each party’s trial position. Family Dollar did not contest that it engaged in interstate commerce or that it failed to pay its store managers time and a half for any work over 40 hours a week. Its success at trial would turn on whether Family Dollar proved its store managers were exempt executives. Before the first jury trial, the court allowed the Plaintiffs to represent the opt-in members as a whole.

Family Dollar argued that Plaintiffs were not similarly situated, repeatedly sought decertification, and alternatively argued the Plaintiffs should be divided into nine subgroups. The court denied Family Dollar’s requests and allowed the case to be tried as a collective action with the Plaintiffs representing (and thus binding for good or bad) the opt-in members as a whole. In the first trial, the jury deadlocked. Therefore, the issues on appeal arise out of the second trial. II. SECOND JURY TRIAL IN 2006 The second jury trial lasted eight days.

This time the jury reached a verdict, expressly finding the store managers were not exempt. The parties called 39 witnesses-store managers, district managers, corporate executives, payroll officials, and expert witnesses. In total, the testifying store managers worked at 50 different Family Dollar stores. The testifying district managers ran the operations of 134 different stores. Two testifying Family Dollar executives oversaw 1,400 stores, while a third testifying executive was in charge of all stores. The parties presented hundreds of Family Dollar’s records detailing its policies and procedures.

These records included Family Dollar’s Store Policy Manual, subsequent manual revisions, four volumes of the Professional Development Training Reference Book, the Personnel Training Manual, various Frequently Asked Question documents, “Weekly Work Schedules,” and emails by district managers to store managers. The parties also introduced a large volume of payroll records showing (1) the number of hours worked by each Plaintiff store manager each week, (2) each store manager’s salary and rate of pay, and (3) the number of hours every employee worked each week.

Both parties submitted multiple exhibits summarizing payroll data in easy-to-digest charts. Given the jury’s verdict and our standard of review, we outline the trial evidence in the light most favorable to the Plaintiffs. A. Corporate Structure Family Dollar is a publicly held, nationwide retailer that operates over 6,000 discount stores in 40 states and the District of Columbia. It has annual sales of around $5 billion and annual net profits ranging from $200 to 263 million from 1999 to 2005. Its individual stores have average annual sales of $1 million, and average net profits of 5 to 7%, or $50,000 to $70,000.

Family Dollar structures store operations into five divisions (each headed by a vice-president), 22 regions (each headed by a regional vice-president), and 380 districts (each overseen by a district manager). Each district contains multiple stores. Each district manager supervises the operations of 10 to 30 stores. Some districts are small with multiple stores in an urban area. Other districts are larger with small stores in small towns. The district manager’s office is housed within one store in the district.

Family Dollar’s corporate office issues instruction manuals with operating policies that apply uniformly to all stores nationwide. No matter the size of the store or the district, every detail of how the store is run is fixed and mandated through Family Dollar’s comprehensive manuals. B. Store Managers Family Dollar has the same job description for all store managers and lists their “Essential Job Functions” as: 1.Supervise all store personnel, including assigning tasks, ensuring compliance with merchandising and operational policies, and locking and unlocking store. 2.

Prepare, complete and transmit store reports as required. 3. Count money/checks, prepare bank deposits and travel to bank. 4. Count petty cash, get change from bank, unlock petty cash drawer and give change to cashiers as needed in registers. 5. Post net sales in Beat Yesterday Book. 6. Train Cashiers and Stock Clerks through verbal instructions and non-verbal demonstration. 7. Count stock, calculate amount to order, use MSI machine to order and transmit, calculate additional goods needed for ad bulletins and endcap programs. 8. Read, plan and stock schematics for proper merchandising. 9.

Practice cash control policies; including check approvals, refund and exchange approvals, layaway approvals (when applicable). 10.

Work as Cashier when needed and be able to perform all Cashier tasks, including but not limited to: • Ring up sales on cash register, receive money/check and count correct change to customer; hold and use register key while on shift. • Scan merchandise labels and place merchandise in bags. • Count money in cash register when coming on and leaving shift; write and sign the Balance & Declare Slip at end of shift. • Clean cash register area using cleaning solutions and paper towels; sweep mat, dressing room and entry areas as necessary. • Verbally greet each customer as they enter the store; receive bags and staple labels to each bag customer brings into store. • Straighten and restock gum, candy and other areas on register. • Attach labels and software to merchandise using Meto gun; place price stickers on hardliners merchandise; read pre-printed labels and use Swif-tach machine to attach softline merchandise. • Place merchandise on correct clothes hangers, button/zip and hang on rack as needed. • Cut register tapes and tape to appropriate packages. • Unpack shipping packages (totes) and prepare for shelf placement. • Monitor dressing room, including opening door, counting merchandise and checking after customer leaves. • Watch suspected shoplifters; ring front bell to notify other employees of situation needing help. 11.

Work as Stock Clerk when needed and be able to perform all Stock Clerk tasks including but not limited to: • Unload incoming freight off trucks; count incoming boxes and verify correct receipt and log in freight log. • Open boxes, check for damaged goods and remove merchandise. • Stock shelves with merchandise, including bulky and heavy goods. • Pack merchandise, complete transfer labels and seal cartons for outgoing shipment. • Organize and maintain layaway bins. • Maintain organization of sign and pricing area. • Store and remove seasonal repacks as necessary. • Perform simple maintenance such as changing light bulbs, moving shelving and panels.

The overwhelming evidence showed that Plaintiff store managers exercise little discretion and spend 80 to 90% of their time performing manual labor tasks, such as stocking shelves, running the cash registers, unloading trucks, and cleaning the parking lots, floors, and bathrooms. Even as to the assigned management tasks, such as paperwork, bank deposits, and petty cash, the store manual strictly prescribes them. And district managers closely scrutinize store managers to ensure compliance with the manual and corporate directives.

Family Dollar forbids outside janitorial help, and store managers lack authority to hire outside vendors. Store managers, just as hourly employees, are expected to clean the store.

For the purposes of “End of Day Recovery,” the manual requires that “[t]wo hours before closing, all employees are to stop their current projects and begin a systematic cleaning and straightening up of the store. (The only exception would be the Cashier who is ringing up sales.) If the store has been shopped heavily, more time may be required to satisfactorily recover.” The manual specifies the trash must be emptied (after checking for hot cigarette butts), the floors must be swept every day, and the floors must be mopped with clear water at least once a week.

Rest rooms must be cleaned and mopped daily, stocked with toilet tissue, paper towels, and a trash container that is to be emptied daily. “Under no circumstances should there be merchandise, equipment or fixtures in the rest rooms.” Store managers routinely perform janitorial duties.

The manual even prescribes how janitorial tasks are to be performed: Each morning the sidewalk is to be swept, the parking lot is to be free of debris, the rides wiped clean and checked for safety reasons, the drink machine wiped clean, the trash cans emptied, the window ledges cleaned of cobwebs and dust, and the windows washed as necessary. Weeds must be removed. Do not allow weeds to grow around the building in the front or back. Pay special attention to the sidewalk area in front of the store. Remove any weeds that may be growing here.

The back of the building (the entire perimeter, if the building is free standing) is to be maintained just as the front. No shopping carts, fixtures or blue totes are to be stored outside. If there are problems with people using the store’s dumpster or leaving large items behind the store, contact the District Manager for instructions. Sweep mats as often as necessary during the day to maintain a clean and neat appearance. If the mat has spots, they are to be removed with a spot remover. Remove chewing gum by hardening the gum with ice, then pulling the gum off.

If the entrance mats get wet, hang them for a few minutes. The water will drain off the mat. With respect to indoor janitorial duties: The windows are to be kept free of cobwebs and dusted daily. The window ledges are also to be maintained daily as needed, free of dust and debris. Store managers lack discretion over the store’s merchandise selection, prices, sales promotions, and layouts — all are set by the home office and district managers.

For example, each store is provided a schematic layout and diagram of the store which shows (1) where each shelf must be, (2) what product goes on each shelf, (3) how all merchandise is to be displayed, (4) how all signs, merchandising, and display information is to be used, (5) how each “end cap” (the end of an aisle or gondola) should be displayed, and (6) what promotional product goes on the end cap. Every month, corporate headquarters mails each store a promotional programs booklet that contains the monthly planning calendar and a number of merchandise programs.

The manual admonishes that “any deviation from the company program must have the District Manager’s approval.” The tiniest of details are governed by the manuals. For example, the manual’s “Clip Boards in the Office” page details how a store must structure its clip boards. Even the four drawer cabinets, located in every store, are organized identically. The manual also has a subsection on “Break Area and Coffee Pots.” It states that “Appliances such as coffee pots, microwave ovens, refrigerators, etc., must be approved by the District Manager.

Whoever makes the coffee is responsible for unplugging the coffee pot when not in use.” The manual instructs: “Do not use the on/off switch as this can be left on by mistake and create a fire hazard. Make periodic checks throughout the day and before closing to assure that it has been unplugged.” Store managers must follow strict rules regarding store keys, bank deposits, petty cash, and store operating hours. For example, the manual requires there be $300 in petty cash, divided into $200 in the petty cash-box for making register change, and $50 in beginning funds for each of the two registers.

In some cases, the petty cash amount may be increased due to the volume of business with the district manager’s and regional vice-president’s approval and notification to the Cash and Sales Department. The manual indicates that “[t]he amount of the store’s Cash Accumulation is to be set by the District Manager .... [and] should be posted in the petty cash box using the ‘Cash Accumulation Card.’ ” Store managers have the same paperwork to do and time frame in which to do it. Further, each store has a preassigned “truck day” when the company truck delivers merchandise to the store.

Because of the volume of unloading and stocking, the store manager always works “truck day.” The store manager helps unload 800 to 1,500 cartons from the truck to the storeroom and stock the shelves. The evidence also showed that store managers are assigned a fixed payroll budget, with total labor hours to come from that budget each week, and are required to use only hourly employees. As detailed later, store managers have scant discretion to act independently of their district managers. C.

Family Dollar Executives Plaintiffs called two Family Dollar executives who testified about store managers’ roles in the Family Dollar- corporate hierarchy. Bruce Barkus started with Family Dollar in 1999, oversaw all stores, and reported to the President. He testified that Family Dollar classified store managers as executives, across the board, without ever determining how store managers spent their time: Q. Okay. And Family Dollar never did any study of the hours that the store managers were spending in the stores working, have they? A. No. Q.

And Family Dollar never studied the tasks that the store managers were doing, working in the stores? A. No. Q. Family Dollar’s never studied or tried to determine how much time they spent on each task in the stores? A. There was some work done on the door to floor, you know, how much time was receiving trucks. Q. But that was not for purposes of looking at their managerial duties? A. No, sir. Q. Family Dollar’s never studied or looked into the managerial duties or the amount of time spent on managerial duties by store managers, have they? A. No, sir. Q.

And Family Dollar’s never done a study or attempted to determine whether store managers are, in fact, bona fide executives, exempt from overtime, have they? A. No. Q. In fact, Family Dollar doesn’t even have a policy addressing Fair Labor Standards Act overtime requirements, does it? A. Not that I am aware of.

Barkus testified that in a study of how much time it took to unload trucks and get merchandise to the floor, that the “biggest chunk of the store manager’s time was being spent on manual labor, unloading the trucks, getting it to the floor, and onto the shelves.” Barkus also testified that district managers ensure that store managers do not exceed the fixed payroll budgets assigned by corporate management. A store manager that goes over budget, by even a penny, could be fired.

Because store managers are under orders that overtime labor is not allowed, they are required to do any and all work, even if the payroll budget does not allocate enough hourly employees to get the job done. Cuts to a store’s payroll budget necessarily reduce a store’s workforce and ensure that the salaried store manager (and not the hourly employees) makes up the difference by working more hours. Almost all of the store manager’s job is standardized and controlled by superiors.

Barkus confirmed that Family Dollar makes virtually no distinction between a store manager’s job duties and an assistant store manager’s job duties. Plaintiffs also offered the testimony of Charles William Broome, a Senior Vice-President of Store Operations, who supervised 1,400 Family Dollar stores. Like Barkus, Broome confirmed that Family Dollar never studied whether store managers were exempt executives and its exemption policy did not turn on any individual factors. It was a company wide decision that applied regardless of store size, location, sales volume, or any other individual factors: Q.

You’re the official company spokesman, as you told us; correct? Now, Family Dollar has simply said all the store managers are exempt, every one of them; right? A. Yes, sir. Q. They hadn’t looked at store size? A. I — I don’t know how to answer that. Store managers have been salaried for the 29 years that I’ve been here; they were when I came. I don’t know how that was arrived at. Q. Okay. Let me ask you this. You said every store’s manager is considered exempt.

And when you said “every”, you meant regardless of store size, number of employees, whether it’s rural or urban, no matter what its risk class, no matter what its sales volumes, no matter what its profits, no matter what anything; you just said they’re all exempt, didn’t you? A. All of our managers are salaried, yes, sir, in every store. Q. Doesn’t matter how many employees are in the store, they’re just all exempt? A. All the stores of Family Dollar, yes, sir. Despite his 29-year tenure with Family Dollar, Broome had no idea where the exemption decision originated: Q.

Now, my question is, did you make that decision? A. No, sir. Q. Did your boss, Mr. Barkus, make that decision? A. To my knowledge, it’s been in place — it was in place when I came here 29 years ago. So— Q. Okay. So, do you know anybody that will own up to that decision; say, “that was my decision”? A. I do not. Q. Mr. Levine, has he ever told you that’s his decision? A. No, sir. Q. Can you give us any clue? And the reason I’m asking you this, I asked you this in the deposition and we’ve been asking a lot of people in depositions: Who made this decision, do you know? A. I do not.

Broome acknowledged that hourly assistant managers fill in for store managers, open and close the store, can perform all managerial tasks of the store manager, and are eligible for overtime pay. Broome confirmed that a store’s payroll budget, the budgetary outlay that dictates how many employees can work in the store, is determined by corporate headquarters in conjunction with the district manager. Store managers are prohibited from exceeding the payroll budget and can be fired if they do.

Family Dollar’s corporate office generates a “staff scheduler” that uses the amount of money that the store may spend on labor and converts it into a document that delineates how many hours a week each employee should work and the total weekly labor hours for the store. According to the staff scheduler, each store manager is supposed to work 52 hours a week. Broome testified that, generally, store managers are expected to work between 48 to 52 hours, but that “as manager of the store, you’re required to manage the store and do whatever it takes.

I don’t know that there is a specific number that’s mandated.” Broome’s testimony was consistent with Family Dollar’s “Staff

Schedule Frequently Asked Questions” (“FAQ”). As to whether store managers can increase or reduce associate hours, the FAQ says they may “as long as total hours & coverage for each day & week are not increased or decreased.” Similarly, as to whether the store manager can change the

schedule to work “a 5/é-day workweek instead of a 5-day workweek,” the FAQ says that “[t]his change can only be made by the District Manager and should only be made as long as total hours & coverage for each day are not increased or decreased.” In other words, any flexibility store managers have in scheduling is substantially constrained by the fixed payroll budget which dictates the total labor hours. Although store managers can

schedule what employees work what hours on the “weekly staff schedule” so long as the store does not exceed the payroll budget, certain corporate directives further constrain store managers’ discretion, such as the prohibition on moving employee coverage from slower days (like weekdays that did not involve unloading truck shipments) to busier days. Finally, the FAQ evinces Family Dollar’s strict rules against scheduling employee overtime. The FAQ indicates that store managers cannot change the

schedule of assistant managers to reflect a 48 to 52 hour workweek while they are training, and that “[i]f the change is made [by the district manager] the total hours & coverage for each day should not be increased or decreased and the store payroll budget must be met. It is very important to control the use of overtime dollars.” D. District Managers Family Dollar’s 380 district managers implement and enforce these policies and procedures. Their vigorous oversight ensures that store managers comply with the operations manual’s precise dictates.

The operations manual states that the district managers — not the store managers — head the “store team.” District managers uniformly run their stores through strict payroll budgets, to-do lists, daily emails with instructions to store managers, telephone calls, store visits, electronic execution reports, and electronic data flowing from the store’s cash register on a real-time basis. Plaintiffs’ witnesses explained how Family Dollar’s corporate office sets a fixed payroll budget for each store and how that budget results in salaried store managers working long hours each week.

The district manager transmits a set payroll budget for the upcoming 13-week period to the store managers. The budget shows the store manager’s salary and a preset number of labor hours a week (to be worked by hourly employees) that must be paid for from that budget. Other than the salaried store manager, Family Dollar staffs every store with only hourly employees (either the assistant manager or sales associates).

District managers then closely monitor each store’s weekly payroll to ensure store managers do not allow overtime work and stay strictly within the fixed payroll budget and the total labor hours allotted. Plaintiffs introduced numerous emails confirming this fact. For example, at a low volume, small store, the district manager sets the store’s payroll budget at around $1,400 per week. The average store manager’s salary of $600 per week comes out of this budget. The remaining $800 pays the hourly employees.

The payroll budget is often only enough to pay one full-time hourly assistant manager and two or three hourly sales associates. Because the store is open seven days a week and store managers are not permitted to unilaterally

schedule hourly staff for overtime, store managers routinely worked 60 to 70 hours a week to have enough floor coverage during the set store hours and to complete the required manual labor. For higher volume, larger size stores, the corporate office sets a larger payroll budget, which usually covers more hourly employees (seven to ten). But larger stores have more merchandise to stock, more cartons to unload on truck day, a need for more cashiers, and more demand for cleaning.

Because the payroll budget is fixed and strictly monitored, store managers at larger stores, just like those at smaller stores, routinely work 60 to 70 hours per week and spend 80 to 90% of their time on manual labor. District managers closely supervise the hiring and firing process. They interview and hire store managers and interview and approve the hiring of assistant managers. Store managers initially interview assistant manager candidates and make recommendations to the district manager. The manual states that a “job offer is not to be made until ...

Management has received authorization to hire.” Although store managers interview and recommend hourly associate candidates, they need district manager approval to hire them. The district manager — not the store manager — also has the authority to terminate employees. The manual notes that “[pjrior to termination, Store Management should discuss the situation and its recommendation with the District Manager, or if unavailable, with the Regional Vice President.” Most store managers follow corporate policy and obtain the district manager’s approval before hiring or firing hourly employees.

Family Dollar’s policies do not require that store managers’ hiring or firing recommendations be given any particular weight. Barkus testified that district managers can veto all store managers’ recommendations on hiring and firing. However, district managers frequently follow the store managers’ hiring and firing recommendations. District managers set the rate of pay for all hourly employees (assistant managers and sales associates) and must approve all pay increases. District managers also evaluate hourly employee performance. Only district managers have the power to close a store for bad weather.

In the “Hurricane Warning Procedures” section, the manual instructs store managers that “[i]f the District manager cannot be located, contact the Regional Vice-President for recommendations regarding the course of action that should be taken.” E. Salary Compared to Hourly Wages Both parties submitted evidence documenting the average weekly salaries of all Plaintiffs and the average hourly wages of assistant managers. Plaintiffs’ evidence showed that, from 1999 to 2005, Plaintiff store managers averaged $599.71 a week in salary.

Despite the fact that the salary was intended to compensate a 52-hour workweek, store managers worked 60 to 70 hours a week. In other words, from 1999 to 2005, Plaintiff store managers averaged from $9.99 an hour (using Plaintiffs’ average salary figures and a 60-hour workweek) to $8.57 an hour (using Plaintiffs’ average salary figures and a 70-hour workweek). During the same years, assistant managers were paid hourly and averaged $7.60 an hour. Assuming a 70-hour workweek, store managers earned, on average, roughly the same (less than a dollar or more per hour) than assistant managers.

Assuming a 60-hour week, store managers earned approximately $2 more per hour than assistant managers in 1999 to 2003 and approximately $3 more per hour in 2004 to 2005. In either event, both sides presented this evidence in order to compare store manager salaries to the salaries of hourly store employees. F.

Judgment/Verdict At the close of the evidence, the district court granted judgment as a matter of law to 163 of the 1,424 Plaintiff store managers, because, according to Family Dollar’s charts, these 163 did not satisfy the third requirement in the executive exemption test, i.e., that they customarily and regularly directed the work of two or more other employees, as required by 29 C.F.R. § 541.1(f) (2003), 29 C.F.R. § 541.100(a) (2006). As to the remaining Plaintiffs, the jury determined Family Dollar failed to prove they were exempt executive employees.

The jury also found that Family Dollar acted willfully in denying overtime pay to all Plaintiffs. The jury awarded $1,575,932.12 in overtime pay to the 163 Plaintiffs and $17,516,071.27 in overtime pay to the remaining Plaintiffs. In calculating this overtime pay, the jury used Family Dollar’s charts that documented (1) the number of hours that each of the Plaintiffs worked per week, and (2) the amount of back pay owed per Plaintiff for the applicable period. III. DECERTIFICATION A.

FLSA’s Similarly Situated Requirement The FLSA authorizes collective actions against employers accused of violating the FLSA. 29 U.S.C. § 216(b).

Section 216(

b) provides that “[a]n action ... 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.” 29 U.S.C. § 216(b). Thus, to maintain a collective action under the FLSA, plaintiffs must demonstrate that they are similarly situated. See Anderson v. Cagle’s, 488 F.3d 945, 952 (11th Cir.2007). Participants in a § 216(

b) collective action must affirmatively opt into the suit. 29 U.S.C. § 216(b) (“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.”). That is, once a plaintiff files a complaint against an employer, any other similarly situated employees who want to join must affirmatively consent to be a party and file written consent with the court. Albritton v. Cagle’s, 508 F.3d 1012, 1017 (11th Cir.2007).

Because similarly situated employees must affirmatively opt into the litigation, the decision to certify the action, on its own, does not create a class of plaintiffs. Rather, the “existence of a collection action under § 216(b) ... depend[s] on the active participation of other plaintiffs.” Cameron-Grant v. Maxim Healthcare Servs. Inc., 347 F.3d 1240, 1249 (11th Cir. 2003) (“Under § 216(b), the action does not become a ‘collective’ action unless other plaintiffs affirmatively opt into the class by giving written and filed consent.”).

The benefits of a collective action “depend on employees receiving accurate and timely notice ... so that they can make informed decisions about whether to participate.” See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486, 107 L.Ed.2d 480 (1989). Therefore, the importance of certification, at the initial stage, is that it authorizes either the parties, or the court itself, to facilitate notice of the action to similarly situated employees. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).

After being given notice, putative class members have the opportunity to opt-in. The action proceeds throughout discovery as a representative action for those who opt-in. See id. The key to starting the motors of a collective action is a showing that there is a similarly situated group of employees. See Anderson, 488 F.3d at 953; Hipp, 252 F.3d at 1217. The FLSA itself does not define how similar the employees must be before the case may proceed as a collective action. And we have not adopted a precise definition of the term. Without defining “similarly,” we provided some guidance in Dybach v.

State of Florida Department of Corrections, 942 F.2d 1562, 1567 (11th Cir.1991). There, we emphasized that before facilitating notice, a “district court should satisfy itself that there are other employees ... who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job requirements and with regard to their pay provisions.” Id. at 1567-68. Later, in Grayson v. K Mart Corp., we instructed that under § 216(b), courts determine whether employees are similarly situated-not whether their positions are identical. 79 F.3d 1086, 1096 (11th Cir.1996).

In other words, we explained what the term does not mean— not what it does. Further, we review a district court’s § 216(

b) certification for abuse of discretion. Hipp, 252 F.3d at 1217; Grayson, 79 F.3d at 1097. Judicial discretion in making a § 216(

b) certification decision is, of course, not unbridled. Indeed, “ ‘[a] district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.’ ” Anderson, 488 F.3d at 953-54 (quoting Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir.2001)). The district court first must apply the proper legal standards for authorizing a § 216(

b) collective action and for determining what similarly situated means. A court’s determination that the evidence shows a particular group of opt-in plaintiffs are similarly situated is a finding of fact. Anderson, 488 F.3d at 954 (affirming decision to de-certify based on conclusion “that the district court’s view of the evidence is reasonable, and its findings, therefore, are not clearly erroneous”); Hipp, 252 F.3d at 1208 (noting that decertification decision is one where the court “makes a factual determination on the similarly situated question”).

We will reverse the district court’s fact-finding that Plaintiffs are similarly situated only if it is clearly erroneous- — not simply because we might have made a different call. Anderson, 488 F.3d at 953-54 (citing McMahan v. Tato, 256 F.3d 1120, 1128 (11th Cir.2001)). B. Two-Stage Procedure for Determining Certification While not requiring a rigid process for determining similarity, we have sanctioned a two-stage procedure for district courts to effectively manage FLSA collective actions in the pretrial phase. The first step of whether a collective action should be certified is the notice stage.

Anderson, 488 F.3d at 952-53; Hipp, 252 F.3d at 1218. Here, a district court determines whether other similarly situated employees should be notified. A plaintiff has the burden of showing a “reasonable basis” for his claim that there are other similarly situated employees. See Anderson, 488 F.3d at 952; Grayson, 79 F.3d at 1097; Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir. 1983).

We have described the standard for determining similarity, at this initial stage, as “not particularly stringent,” Hipp, 252 F.3d at 1214, “fairly lenient,” id. at 1218, “flexible],” id. at 1219, “not heavy,” Grayson, 79 F.3d at 1097, and “less stringent than that for joinder under Rule 20(

a) or for separate trials under 42(b),” id. at 1096. In 2007, we recounted our law and noted that at the initial stage, courts apply a “fairly lenient standard.” Anderson, 488 F.3d at 953; see Hipp, 252 F.3d at 1218. The district court’s broad discretion at the notice stage is thus constrained, to some extent, by the leniency of the standard for the exercise of that discretion. Nonetheless, there must be more than “only counsel’s unsupported assertions that FLSA violations [are] widespread and that additional plaintiffs would come from other stores.” Haynes, 696 F.2d at 887.

This first step is also referred to as conditional certification since the decision may be reexamined once the case is ready for trial. Albritton, 508 F.3d at 1014 (discussing Hipp’s first stage as “conditionally certifying the collective action”); Anderson, 488 F.3d at 952 (stating district court certified collective action, “but only conditionally,” noting the possibility of later decertifying once discovery is substantially over). The second stage is triggered by an employer’s motion for decertification. Anderson, 488 F.3d at 953.

At this point, the district court has a much thicker record than it had at the notice stage, and can therefore make a more informed factual determination of similarity. Id. This second stage is less lenient, and the plaintiff bears a heavier burden. Id. (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001)). In Anderson, we again refused to draw bright lines in defining similarly, but explained that as more legally significant differences appear amongst the opt-ins, the less likely it is that the group of employees is similarly situated.

Id. (“Exactly how much less lenient we need not specify, though logically the more material distinctions revealed by the evidence, the more likely the district court is to decertify the collective action.”). We also refused to “specify how plaintiffs’ burden of demonstrating that a collective action is warranted differs at the second stage.” Id. Rather, we emphasized the fact that the “ultimate decision rests largely within the district court’s discretion,” and clarified that in order to overcome the defendant’s evidence, a plaintiff must rely on more than just “allegations and affidavits.” Id.

Because the second stage usually occurs just before the end of discovery, or at its close, the district court likely has a more extensive and detailed factual record.

In Anderson, we also quoted approvingly of Thiessen, where the Tenth Circuit identified a number of factors that courts should consider at the second stage, such as: “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants] [that] appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations^]” Anderson, 488 F.3d at 953 (quoting with approval Thiessen, 267 F.3d at 1103); see also Mooney, 54 F.3d at 1213 n. 7, 1215-16.

Thus, at the second stage, “although the FLSA does not require potential class members to hold identical positions, the similarities necessary to maintain a collective action under § 216(

b) must extend beyond the mere facts of job duties and pay provisions” and encompass the defenses to some extent. Anderson, 488 F.3d at 953 (citation and quotation marks omitted). For example, the district court must consider whether the defenses that apply to the opt-in plaintiffs’ claims are similar to one another or whether they vary significantly. Id. at 954 n. 8 (noting that all named plaintiffs were unionized but some opt-in plaintiffs were not, making the collective bargaining agreement defense applicable to some but not all plaintiffs).

But ultimately, whether a collective action is appropriate depends largely on the factual question of whether the plaintiff employees are similarly situated to one another. C. District Court’s Denial of Decertification Turning to this case and applying our circuit precedent, we conclude that Family Dollar has not shown that the district court abused its discretion in denying Family Dollar’s motion for decertification. First, the district court not only properly followed the two-stage procedure for certifying a § 216(

b) collective action but also demanded even more evidence than required before certifying the case at the first notice stage. We recounted the procedural background at great length because it readily reveals that the district court proceeded very cautiously and required much more than mere allegations of similarity. The district court denied stage one certification two times, without prejudice, and continued to reexamine its decision as the parties gathered and presented additional evidence.

The district court conditionally certified the collective action only after the parties filed the depositions of the named Plaintiffs and multiple affidavits and after making detailed fact-findings that Plaintiffs’ jobs were similar. Subsequently, after three more years of discovery, the district court relied on a fully developed record when it denied Family Dollar’s motion for decertification, and again based its decision on detailed fact-findings.

The procedural background shows that the issue of whether these 1,424 Plaintiffs were similarly situated was exhaustively litigated in the district court for over four years. At each step of the process, the district court also applied the correct legal standards under the FLSA for collection actions. Second, and more importantly, ample evidence supports the district court’s fact-findings that the Plaintiff store managers were similarly situated under § 216(b).

The district court, at the second stage, had a complete and comprehensive record and found that the opt-in store managers were factually similar in a number of respects including: (1) their universal classification as store managers with the same job duties; (2) the small fraction of time they spent on managerial duties; (3) the large amount of time they spent on non-managerial duties such as stocking shelves, running the cash registers, unloading trucks, and performing janitorial work; (4) the restrictions on their power to manage stores as compared to the district manager’s sweeping managerial discretion; (5) the amount of close district manager supervision of store managers; (6) the lack of managerial discretion that Family Dollar corporate policies afforded to store managers; (7) their day-to-day responsibilities; (8) their receiving base salaries regardless of the hours worked and no overtime pay; (9) their sharing certain managerial duties with hourly employees; (10) their maintaining production and sales records; (11) their inability to authorize pay raises; (12) them power to train subordinates; (13) their restricted authority to close stores in the event of emergencies; and (14) their inability to select outside vendors without district manager approval.

We recognize Family Dollar’s assertion that the duties of store managers varied significantly depending on the store’s size, sales volume, region, and district. But there was scant evidence to support this argument. Rather, the bulk of evidence demonstrated that the store managers were similarly situated and even Family Dollar perceived no such distinction. Indeed, it exempted all store managers from overtime pay requirements without regard to store size, sales volume, region, district, or hiring and firing authority.

As to the second factor, whether there were defenses individual to each Plaintiff, Family Dollar argues the executive exemption defense is always individualized and fact specific, thereby precluding this collective action. As discussed later, applying the executive exemption is “an inherently fact-based inquiry” that depends on the many details of the particular job duties and actual work performed by the employee seeking overtime pay. See Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1263 (11th Cir.2008).

But Family Dollar ignores the overwhelming evidence showing that the Plaintiffs, as a group, shared a number of factual details with respect to their job duties and day-to-day work. Just because the inquiry is fact-intensive does not preclude a collective action where plaintiffs share common job traits.

Given the volume of evidence showing the store managers were similarly situated, and the fact that Family Dollar applied the executive exemption across-the-board to every store manager — no matter the size, region, or sales volume of the store — Family Dollar has not shown clear error in the district court’s finding that its defenses were not so individually tailored to each Plaintiff as to make this collective action unwarranted or unmanageable.

As to the third factor, fairness and procedural considerations, we reject Family Dollar’s contention that given the size of the class, the individualized application of the exemption defense, and the court’s decision to allow representative testimony at trial, any collective action would be inherently unfair. There is nothing inherently unfair about collectively litigating an affirmative executive-exemption defense where the district court has made well-supported and detailed findings with respect to similarity.

Indeed, the more similar the employees, the less likely that collectively litigating the executive-exemption issue can be fundamentally unfair. And to repeat, there was abundant evidence that Plaintiffs’ actual jobs were the same, or, at a minimum, substantially similar. In addition, Plaintiffs’ evidence established that Family Dollar uniformly exempted all store managers from overtime pay requirements, and its exemption decision did not turn on any individualized factors. Not one.

There is nothing unfair about litigating a single corporate decision in a single collective action, especially where there is robust evidence that store managers perform uniform, cookie-cutter tasks mandated by a one-size-fits-all corporate manual. Addressing whether Plaintiffs’ claims could be tried fairly as a collective action also requires looking to the purposes of § 216(

b) actions under the FLSA: (1) reducing the burden on plaintiffs through the pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from the same illegal conduct. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (noting a collective action affords plaintiffs the “advantage of lower individual costs to vindicate rights by the pooling of resources” and “[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact”).

We also bear in mind that the FLSA is a remedial statute that should be liberally construed. Prickett v. DeKalb County, 349 F.3d 1294, 1296 (11th Cir. 2003) (“FLSA is a remedial statute that has been construed liberally to apply to the furthest reaches consistent with congressional direction.” (quotation marks omitted)). Oddly, the thrust of Family Dollar’s fairness argument butts up against the purpose of a collective action-to efficiently resolve a large number of plaintiffs’ claims.

Therefore, generally speaking, the size of an FLSA collective action does not, on its own, compel the conclusion that a decision to collectively litigate a case is inherently unfair. Furthermore, Family Dollar’s decertifi-cation argument is, at root, a claim that the district court’s subsequent use of representative testimony during the actual trial was inherently unfair. As discussed later, Family Dollar’s representative — testimony assertion — that the district court allowed the jury to decide 1,424 claims based on the testimony of only seven named Plaintiffs — is not supported by the record.

In any event, we examine the evidence before the court when it heard Family Dollar’s motion to decertify. See Haynes, 696 F.2d at 887 (“Our review of that decision must be premised upon the evidence that was before the district court at that time.”). We are persuaded that, before trial, fairness considerations militated in favor of allowing this overtime-pay action to proceed in a collective forum.

Given the substantial similarity of the class members’ jobs and uniform corporate treatment of the store managers, it would not serve the interest of judicial economy to require these overtime-pay claims to be adjudicated in 1,424 individual trials. Based on the record in this case, we cannot say the district court abused its discretion in denying Family Dollar’s motion for decertification. IV. EXECUTIVE EXEMPTION DEFENSE A.

FLSA’s Executive Exemption The FLSA requires that employers pay their employees time and a half for hours an employee works in excess of a 40-hour workweek. 29 U.S.C. § 207(a)(1); Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir.2008); Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir.2007). But there are exemptions to this requirement. Alvarez Perez, 515 F.3d at 1156.

The exemption at issue here, the executive exemption, provides that the FLSA’s requirements “shall not apply with respect to ... any employee employed in a bona fide executive ... capacity.” 29 U.S.C. § 213(a)(1). The Department of Labor’s (“DOL”) regulations interpret this defense. Because Plaintiffs’ claims span from 1999 until 2005, two sets of DOL regulations apply. The regulations that were in effect prior to August 23, 2004 (the “old regulations”) contain a short test that defines the phrase “employee employed in a bona fide executive capacity.” 29 C.F.R. § 541.1 (2003) (ellipsis omitted).

This short test has three requirements: (1) an employee “is compensated on a salary basis at a rate of not less than $250 per week,” (2) his “primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof,” and (3) his work “includes the customary and regular direction of the work of two or more other employees.” Id. (2003); Rodriguez, 518 F.3d at 1263; Brock v. Norman’s Country Mkt., Inc., 835 F.2d 823, 825 (11th Cir.1988). After August 23, 2004, the new regulations apply and add a fourth requirement.

To establish an employee is a bona fide executive, an employer must show: (1) the employee is “[compensated on a salary basis at a rate of not less than $455 per week”; (2) the employee’s “primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof’; (3) the employee “customarily and regularly directs the work of two or more other employees”; and (4) the employee “has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.” 29 C.F.R. § 541.100(a) (2006).

The parties agree that the first element of the executive exemption test — the amount of salary — is met. But they hotly dispute the second element — whether the store managers’ primary duty is management. Thus, we examine the second element. B. Primary Duty Is Management Both regulations require that the employee’s primary duty is management.

The old regulations give these examples of managerial tasks: Interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work; maintaining their production or sales records for use in supervision or control; appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; handling their complaints and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety of the men and the property. 29 C.F.R. § 541.102(b) (2003).

The new regulations are similar and explain that generally, management includes, but is not limited to, the same conduct listed in the old regulations, but adds these examples of managerial tasks: “planning and controlling the budget; and monitoring or implementing legal compliance measures.” 29 C.F.R. § 541.102 (2006). The old and new regulations do not define primary duty. Both indicate the answer to the primary duty question “must be based on all the facts in a particular case.” 29 C.F.R. § 541.700(a) (2006); 29 C.F.R. § 541.103 (2003).

Both regulations identify factors to consider when determining whether an employee’s primary duty is managerial. See 29 C.F.R. § 541.700(a) (2006); 29 C.F.R. § 541.103 (2003).

The old regulations list these five factors: (1) “[t]he amount of time spent in the performance of the managerial duties”; (2) “the relative importance of the managerial duties as compared with other types of duties”; (3) “the frequency with which the employee exercises discretionary powers”; (4) “his relative freedom from supervision”; and (5) “the relationship between [the employee’s] salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor.” 29 C.F.R. § 541.103 (2003); see also Rodriguez, 518 F.3d at 1264 (listing factors in § 541.103 to be analyzed in determining whether an employee’s primary duty is management).

The old regulations explain: “In the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee’s time. Thus, an employee who spends over 50 percent of his time in management would have management as his primary duty.” 29 C.F.R. § 541.103 (2003). The regulations then hedge a bit, and state that “[t]ime alone ... is not the sole test .... ” Id. (2003).

Where the employee does not spend over 50% of his time on management, “he might nevertheless have management as his primary duty if the other pertinent factors support such a conclusion.” Id. (2003). The new regulations make a stronger effort to define primary duty, stating that “[t]he term ‘primary duty’ means the principal, main, major or most important duty that the employee performs.” 29 C.F.R. § 541.700(a) (2006). The new regulations also add that this determination is to be made “with the major emphasis on the character of the employee’s job as a whole.” Id. (2006).

The new regulations explicitly reference the same factors with one exception. The third factor — “the frequency with which the employee exercises discretionary powers” — has been deleted. Compare id. (2006), with 29 C.F.R. § 541.103 (2003). The new regulations, like the old, expand upon the time-spent-on-exempt-work factor.

The new regulations state that this factor “can be a useful guide in determining whether exempt work is the primary duty of an employee” and that “employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement.” 29 C.F.R. § 541.700(b) (2006). As in the old ones, the new regulations specify that “[t]ime alone, however, is not the sole test” and thus “[ejmployees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion.” Id. (2006).

The new regulations also clarify that “[cjoncurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption if the requirements of § 541.100 are otherwise met.” Id. § 541.106(a) (2006). In other words, an employee’s performance of nonexempt work does not preclude the exemption if the employee’s primary duty remains management.

Similarly, an employee whose primary duty is to perform nonexempt work does not become exempt merely because she has some responsibility for occasionally directing the work of nonexempt employees. “Whether an employee meets the requirements of § 541.100 when the employee performs concurrent duties is determined on a case-by-case basis” and based on the factors already set forth in § 541.700(

a) as to the primary duty question. Id. (2006). We turn to Family Dollar’s argument that the primary duty of its store managers is managerial, triggering the FLSA’s executive exemption, and that the court erred in denying Family Dollar’s motion for judgment as a matter of law. C. Family Dollar’s Motion for Judgment as a Matter of Law Family Dollar bears the burden of proving its executive exemption affirmative defense. Alvarez Perez, 515 F.3d at 1156; Brock, 835 F.2d at 826. This Court has recognized the “Supreme Court’s admonition that courts closely circumscribe the FLSA’s exceptions.” Nicholson v. World Bus.

Network, Inc., 105 F.3d 1361, 1364 (11th Cir.1997). And the exemption “is to be applied only to those clearly and unmistakably within the terms and spirit of the exemption.” Brock, 835 F.2d at 826 (quotation marks omitted). Therefore, we narrowly construe exemptions to the FLSA overtime requirement. Alvarez Perez, 515 F.3d at 1156 (stating “exemptions are to be construed narrowly” (quotation marks omitted)); Nicholson, 105 F.3d at 1364. We have rejected a “categorical approach” to deciding whether an employee is an exempt executive. Rodriguez, 518 F.3d at 1264.

Instead, we have noted the “necessarily fact-intensive nature of the primary duty inquiry,” that “the answer is in the details,” and that “[w]here an issue turns on the particular facts and circumstances of a case, it is not unusual for there to be evidence on both sides of the question, with the result hanging in the balance.” Id. And “[t]he result reached must be left intact if there is evidence from which the decision maker, the jury in this instance, reasonably could have resolved the matter the way it did.” Id.

Here, the trial evidence was legally sufficient for a reasonable jury to find that Family Dollar failed to meet its burden of proving that its store managers’ primary duty was management. Because that evidence is detailed above, we do not recount it but focus on the factors in the primary duty inquiry. As to the time-spent-on-exempt-work factor, the overwhelming evidence at trial showed Plaintiff store managers spent 80 to 90% of their time performing nonexempt, manual labor, such as stocking shelves, running the cash registers, unloading trucks, and cleaning the parking lots, floors, and bathrooms.

Conversely, Plaintiff store managers spent only 10 to 20% of their time performing exempt work, a far cry from the DOL’s 50% guideline for management tasks. See 29 C.F.R. § 541.700(b) (2006); 29 C.F.R. § 541.103 (2003). Family Dollar did not present evidence to the contrary. See Allen, 495 F.3d at 1315 (“The employer is in a superior position to know and produce the most probative facts concerning the nature and amount of work performed .... ”).

In fact, Family Dollar executives Barkus and Broome testified that Family Dollar never studied what store managers actually did on a day-to-day basis or the amount of time store managers spent on managerial duties. We recognize that the amount of time spent performing exempt tasks is not dispositive of the primary duty issue. But substantial evidence about the four other factors also supports the jury’s verdict here.

As to the relative importance of store managers’ managerial duties compared with their nonexempt duties, this factor weighs in favor of the jury’s finding that store managers are not exempt executives. Admittedly, the store managers’ job description includes managerial duties. But Family Dollar’s job description of the store managers’ “Essential Job Functions” provides that store managers must do the same work as stock clerks and cashiers.

Store managers must work their store’s preassigned merchandise delivery day, known as “truck day.” Barkus acknowledged that store managers spent their delivery-day time doing manual labor. Rather than treat these manual tasks as an incidental part of a managerial job, Family Dollar describes them as essential. A large amount of manual labor by store managers was a key to Family Dollar’s business model given each store’s limited payroll budget and the large amount of manual labor that had to be performed.

The jury was free to weigh the relative importance of the store managers’ managerial and non-managerial duties, but ample evidence supported a finding that the non-managerial tasks not only consumed 90% of a store manager’s time but were of equal or greater importance to a store’s functioning and success. The third factor in the old regulations— the frequency with which the employee exercises discretionary powers — also supports the jury’s verdict. There was overwhelming evidence that store managers spent only 10 to 20% of their time on exempt (i.e., managerial) work.

Plaintiffs presented evidence that store managers rarely exercised discretion because either the operations manuals or the district managers’ directives controlled virtually every aspect of a store’s day-to-day operations. The manuals and other corporate directives micro-managed the days and hours of store operations, the number of key sets for each store, who may possess the key sets, entire store layouts, the selection, presentation, and pricing of merchandise, promotions, payroll budgets, and staffing levels.

The manuals even instruct store managers on the smallest details, such as how to arrange clip boards, what items go in each of the four drawers of the single file cabinet, and how to remove spots and chewing gum from store mats. The few decisions not ma

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