Q: I am an assistant store manager and a salaried employee. I am receiving $2,000 a month. My job duties include supervising other employees. But most of the day, I am actually working on stocking the shelves, assisting other customers, and ringing up the sales. I work at least 10 hours from Monday to Friday and four hours every Saturday. Am I entitled to overtime pay?
A: Yes, you are entitled to overtime pay. Based on your actual job duties and your actual salary, you do not fall into the category of an exempt employee. Exempt employees are not entitled to overtime pay. However, some employers misclassify their employees as exempt even though they are not because the employer wants to avoid paying overtime.
But to be truly exempt from overtime payments, the employee must be correctly classified under the executive, administrative or professional exemptions. Therefore, the following guidelines bear repeating:
Executive Exemption
For executive exemption to apply, an employee must be: (1) paid at least twice the state’s minimum wage for full time employment; (2) assigned as primary function the management of the business; (3) responsible for regularly directing the work of 2 or more subordinates; (4) has the authority to hire, fire, give pay treatment or recommend such actions; (5) regularly and customarily exercises discretionary powers; and (6) devotes less than 50% of work time to non-managerial duties.
Administrative Exemption
To fall under the administrative exemption, an employee must be: (1) paid at least twice the state’s minimum wage for full time employment; (2) charged with the performance of office or non-manual work directly related to management policies or general business operations; (3) regularly exercises discretionary and independent judgment; (4) regularly assists a proprietor or an executive or administrative employee; and (5) works only under general supervision on special or technical assignments and tasks.
Professional Exemption
Employees exempt under the professional exemption must be: (1) engaged in work which is primarily intellectual, artistic, creative or requiring advanced knowledge; (2) assigned a job that requires the exercise of discretion and independent judgment.; (3) paid at least twice the state’s minimum wage for full time employment; (4) licensed or certified by the State and engaged in the practice of law, medicine, dentistry, pharmacy, optometry, architecture, engineering, teaching, or accounting (or engaged in a learned or artistic professions).
In the past years, several major class actions involving overtime claims by misclassified employees have been settled or decided in favor of the employees. Employers have paid hundreds of millions of dollars for this violation. However, these lawsuits have not stopped some employers from continuing to misclassify their employees.
Sometimes, it is hard to correctly classify some employees. Employees who carry the titles of manager, supervisor, assistant manager, or executive may not necessarily be working as such. Hence, these types of employees are the ones more frequently misclassified. The above guidelines should help employees determine if they are really exempt. It is smart, however, to consult with an experienced employment attorney to know if you are entitled to additional compensation.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. He is a graduate of University Law Center Washington, D.C. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
(www.asianjournal.com)
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