Attorney Authored
Cornell HR Review - The Value of Discretion
May 29, 2013
BY BLAKE R. BERTAGNA
In Shakespeare’s Henry IV, the lazy and lecherous Sir John Falstaff is attacked during battle, falls to the ground, and feigns his death. Falstaff attempts to justify his act of cowardice by explaining: “The better part of valor is discretion, in the which better part I have sav’d my life.” By exercising his “discretion” to fake his death, Falstaff rationalizes that he is free to live to fight another day.
There is little to be lauded in Falstaff’s distorted worldview. Yet, employers may find something illuminating in Falstaff’s value of “discretion.” Employers can forego paying minimum wages and overtime compensation if their employees qualify under one of many exemptions provided for under the Fair Labor Standards Act (FLSA) or its state counterparts. The most commonly invoked of these exemptions — the administrative exemption — requires that employees exercise “discretion and independent judgment” in the performance of their primary job duties.
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