In total, approximately 60% of a Dispatcher's time is spent "perform[ing] monitoring and control of electric systems and emergency response"; 15% in "communications and notifications"; and 25% in "regulatory reporting compliance" and "documentation."

2 The DOL also argues that the district court misapplied the third prong of the administrative exemption test -- the requirement that an employee's "primary duty include[] the exercise of discretion and independent judgment with respect to matters of significance."

The Secretary's regulations define those working in an "administrative" capacity to include those employees: (1) Compensated on a salary or fee basis pursuant to § 541.600 at a rate of not less than $684 per week ... exclusive of board, lodging or other facilities; (2) Whose 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) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Consequently, the only way Unitil Service -- which bears the burden of establishing that an employee falls under the FLSA's "administrative" exemption -- can satisfy the second prong is to show that the Dispatchers' and Controllers' primary duties are directly related to the management or general business operations of the DOCs (the employer's customers).

Unitil Service has not demonstrated that the Dispatchers' and Controllers' primary duty consists of work "directly related to the management or general business operations" of its customers such that the employees fall under the second prong of 29 C.F.R. § 541.200.

Case: 22-1070 Document: 00117983805 Page: 1 Date Filed: 03/08/2023 Entry ID: 6554075 United States Court of Appeals For the First Circuit

Before Gelpí, Selya, and Thompson Circuit Judges.

The petition for panel rehearing filed by appellee Unitil Service Corporation is granted.

The opinion of this Court issued on January 11, 2023, is withdrawn, and the judgment of even date is vacated.

Landya B. McCafferty Daniel Lynch, Clerk, United States District Court for the District of New Hampshire Garrett Jorgen Lee Seth R. Aframe Dean Romhilt Mark Adams Pedulla William D. Pandolph

In total, approximately 60% of a Dispatcher's time is spent "perform[ing] monitoring and control of electric systems and emergency response"; 15% in "communications and notifications"; and 25% in "regulatory reporting compliance" and "documentation."

Moreover, while that question may be helpful to determining the "principal function" of a business to distinguish between, for example, administrative and operative roles, there is little principled basis in the text of the regulation for differentiating between "'primary' marketplace offering[s] and secondary or tertiary" ones.

For instance, in John Alden, we held that the marketing representatives at issue were exempt administrative employees because they were responsible for "promoting (i.e., increasing, developing, facilitating, and/or maintaining) customer sales generally," 126 F.3d at 10 (quoting Martin v. Cooper Elec.

Consequently, the only way Unitil Service -- which bears the burden of establishing that an employee falls under the FLSA's "administrative" exemption -- can satisfy the second prong is to show that the Dispatchers' and Controllers' primary duties are directly related to the general business operations of the DOCs (the employer's customers).

Unitil Service has not demonstrated that the Dispatchers' and Controllers' primary duty consists of work "directly related to the management or general business operations" of its customers such that the employees fall under the second prong of 29 C.F.R. § 541.200.

Case: 22-1070 Document: 00117962985 Page: 1 Date Filed: 01/11/2023 Entry ID: 6542611 United States Court of Appeals For the First Circuit

MARTIN J. WALSH, Secretary of Labor,

This cause came on to be heard on appeal from the United States District Court for the District of New Hampshire and was argued by counsel.

Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The decision of the district court granting summary judgment to Unitil Service Corporation is vacated, and the matter is remanded for further proceedings consistent with the opinion issued this day.

Landya B. McCafferty, Daniel Lynch, Clerk, United States District Court for the District of New Hampshire, Garrett Jorgen Lee, Seth R. Aframe, Dean Romhilt, Mark Adams Pedulla, William D. Pandolph By the Court: Maria R. Hamilton, Clerk

In total, approximately 60% of a Dispatcher's time is spent "perform[ing] monitoring and control of electric systems and emergency response"; 15% in "communications and notifications"; and 25% in "regulatory reporting compliance" and "documentation."

Moreover, while that question may be helpful to determining the "principal function" of a business to distinguish between, for example, administrative and operative roles, there is little principled basis in the text of the regulation for differentiating between "'primary' marketplace offering[s] and secondary or tertiary" ones.

For instance, in John Alden, we held that the marketing representatives at issue were exempt administrative employees because they were responsible for "promoting (i.e., increasing, developing, facilitating, and/or maintaining) customer sales generally," 126 F.3d at 10 (quoting Martin v. Cooper Elec.

Consequently, the only way Unitil Service -- which bears the burden of establishing Case: 22-1070 Document: 00117962982 Page: 19 Date Filed: 01/11/2023 Entry ID: 6542610 that an employee falls under the FLSA's "administrative" exemption -- can satisfy the second prong is to show that the Dispatchers' and Controllers' primary duties are directly related to the general business operations of the DOCs (the employer's customers).

Unitil Service has not demonstrated that the Dispatchers' and Controllers' primary duty consists of work "directly related to the management or general business operations" of its customers such that the employees fall under the second prong of 29 C.F.R. § 541.200.

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