Many assistant managers are told that they are exempt from overtime pay.  Assistant managers are often required to work long hours without any compensation other than “straight time” or their base salary.  Employers often refuse to pay assistant managers overtime because they do not understand the overtime exemptions under the Fair Labor Standards Act, or FLSA.  Assistant managers are often told that they are exempt from overtime pay because (1) they are paid a salary; or (2) they fall within one of the FLSA’s overtime exemptions.  With respect to the first excuse, the FLSA does not require an employee to be paid hourly to be entitled to overtime pay.  In fact, many salaries employees should be compensated for overtime.  The test, instead, is whether the employee’s duties render the employee subject to one or more of the FLSA’s statutory exemptions.  The most commonly relied-upon exemption with respect to assistant managers is the executive exemption.

Whether an assistant manager falls within the executive exemption depends on the employee’s job duties.  To qualify for the executive employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Most assistant managers do not qualify for this exemption, either because (1) they do not spend most of their time managing the business (instead, they are generally required to perform the same amount of work as other, non-salaried employees); or (2) they do not regularly supervise two or more full-time employees; or (3) they do not have the power to hire or fire employees.  Recently, an assistant manager at the Safeway grocery chain was awarded more than $26,000 in unpaid overtime, as the Court found that she had been misclassified as exempt from overtime pay.  And in August, Panera Bread Company was sued in federal court in Ohio for allegedly failing to pay its assistant managers overtime.

If you are a manager, supervisor, assistant manager or associate manager and you regularly work more than forty hours per week but are not paid overtime, you should determine your overtime pay rights by consulting with an experienced overtime attorney.

The FLSA entitles workers that have not been paid overtime to recover up to three years of unpaid overtime, as well as liquidated damages in an equal amount, as well as attorney’s fees.  This is true even if the employee quit or was terminated.  If you believe you may be entitled to unpaid overtime, call Josh Borsellino for a free evaluation of your unpaid overtime matter.

About the author: While my office is located in Fort Worth, I am admitted to practice in every state and federal court in Texas, and I am able to handle unpaid overtime cases in Dallas, Fort Worth, Burleson, Denton, Arlington, Grand Prairie, Houston, Waco, Austin, San Antonio, and across Texas.  For a free evaluation of your legal matter, call me at 817.908.9861 or fill out the contact form.