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The dispute between the parties focuses on the third
requirement.5 Respondent argues that because Maschmeyer was
employed as petitioner’s president, in order to satisfy the third
requirement petitioner must demonstrate that Maschmeyer was
required to use the residence in order to perform his executive
duties. In respondent’s view, petitioner has not satisfied its
burden.
We are not persuaded by respondent’s logic, which reflects
an unduly narrow understanding of the scope of Maschmeyer’s
executive duties. Maschmeyer testified that petitioner needed
someone on the premises at all times for the security of its
500-acre nursery and valuable equipment, for supervision of
resident migrant workers, and for shipment of trees after
business hours during the busy harvest season. He testified that
for more than a decade the residence was occupied by the foreman
who performed these duties. He testified that he assumed these
duties when the foreman secured employment elsewhere.
Maschmeyer’s testimony was credible and uncontroverted. It is
clear from the nature of these duties that they required presence
on-site at all times during the work week. If Maschmeyer had not
been required by his responsibilities to reside on-site, there
would be no explanation for the fact that he continued to live
5 Both parties seem to have taken it for granted that
improvements to a residence should be treated no differently from
the residence for purposes of this analysis. We shall therefore
do likewise.
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