Q: I WORK as an assistant manager for a retail store. I am a salaried employee and exempt from overtime. Upper management requires me to multi-task and do the work of hourly employees such as stocking the shelves, data entry, and customer service – tasks which take up a lot of my time and force me to work up to 14 hours per day. Am I entitled to additional pay if I perform these non-managerial tasks?
A. Yes, you may be entitled to additional pay. Under California law, employees are entitled to overtime pay for any work in excess of eight hours in one workday, or 40 hours in any one workweek, unless the employee qualifies for a legal exemption. One such exemption is called the “executive exemption.” To be exempted from overtime, the employee must regularly exercise discretion and independent judgment at work and is primarily engaged in duties which are managerial in nature.
But what if the employee performs both managerial and non-managerial tasks? How should the employee be paid? If an exempt employee spends more time doing non-managerial work, he or she is entitled to overtime pay. A recent decision from the Court of Appeal illustrates this point.
Linda Heyen is a former assistant manager for Safeway Inc. who was classified as an exempt/salaried employee. She sued Safeway to recover unpaid overtime pay, saying the employer should have classified her as a “nonexempt” employee because she regularly spent more than 50 percent of her work hours doing “nonexempt” tasks such as bagging groceries, stocking shelves, and bookkeeping. The trial court agreed with Heyen and awarded her overtime pay plus interest.
Safeway appealed, arguing that a managerial employee like Heyen can simultaneously do “exempt” and “nonexempt” work (i.e., manage a store while bagging groceries), and her “nonexempt” tasks must be characterized as exempt if the employee’s “primary purpose” in engaging in it was supervisory.
The Court of Appeal rejected Safeway’s arguments, stating that California’s labor laws do not recognize “hybrid” activities—i.e., activities that have both “exempt” and “nonexempt” aspects. Rather, the regulations require that each discrete task be separately classified as either “exempt” or “nonexempt.” If non-exempt work takes up a large part of a supervisor’s time, the supervisor likely is a “nonexempt” employee, and is entitled to overtime pay.
Tasks may be “exempt” or “nonexempt” based on the purpose they serve within the organization. A task performed because it is “helpful in supervising the employees or contributes to the smooth functioning of the department” is exempt, even though the same task performed for a different, non-managerial reason would be nonexempt. In a large retail establishment where the replenishing of stocks of merchandise on the sales floor is customarily assigned to a nonexempt employee, the performance of such work by the manager is nonexempt. Similarly, a manager’s participation in making sales to customers is nonexempt, unless the sales are made for “supervisory training or demonstration purposes.
Managers, supervisors, and administrators who receive monthly salaries and are not paid overtime should evaluate the nature of their jobs. Labels or job titles alone are not enough. Some employers may use fancy job titles to avoid paying overtime. If they mostly perform non-exempt work, employees should be paid overtime. As this analysis may involve application of legal principles, these employees are well advised to inquire with an experienced employment attorney.
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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 employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and 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: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.
