Manager also stocked shelves — was she exempt from OT?
October 21, 2008 by Sam NarisiPosted in: FLSA, In this week's e-newsletter, Latest News & Views, Overtime
The Fair Labor Standards Act states that employees who manage others don’t need to be paid for overtime. But what about managers who also do physical or clerical work?
Read the facts of this real-life case and decide: Who won?
The facts:
A woman managed a store and worked at least 50 hours a week. Since she was a manager, the company classified her as exempt and didn’t pay her OT. However, she felt she was misclassified because she normally spent 60% of her time on non-managerial duties, like stocking shelves, sweeping the floors and running the cash register. She sued the company for unpaid OT.
The employer said:
Even though she had a lot of other work to do, the woman was hired to manage — so she was a manager for the purposes of OT exemption.
Who won the case?
Answer: The employer.
Why? Employees are exempt if managing is their “primary duty” — regardless of how much time they spend on each specific task. The time element can be a useful indicator of someone’s primary duty, but it isn’t conclusive.
The “relative importance” of each duty is also a key factor. In this case, the court said, the woman could stop performing her non-managerial tasks and the store would still function — but if she stopped managing, it would close.
Therefore, the woman was exempt from OT.
Cite: Thomas v. Speedway SuperAmerica, LLC
October 22nd, 2008 at 9:51 am
Is there a typo in the facts section? Did they really classify her as nonexempt and not pay her overtime? It seems, unless I just read this too quickly, that the classification as nonexempt does not match the answer and why.
October 22nd, 2008 at 9:54 am
Michelle,
Yes, that was a typo. The employee was classified as exempt and sued to get OT. Thanks for pointing that out.
Sam Narisi
Editor
HR Legal News
October 22nd, 2008 at 10:46 am
I agree with this. If you are hired to manage that involves all aspects. Managing a business sometimes means having to assist or do others responsibilities if they are too overwhelmed at that time or may be out sick and things need to be done.
October 22nd, 2008 at 11:02 am
Please note that in CA if the person does not spend at least 51% of their time on managerial work, they will be non-exempt…thus the many huge payouts from retail establishments and restaurants.
October 22nd, 2008 at 11:27 am
Confirming what Jeanette said…most likely the plaintiff would have won if this case had been heard in CA.
October 22nd, 2008 at 12:19 pm
I agree with the ruling., As Manager she should have appointed a regular employee to sweep floors and such.
October 22nd, 2008 at 1:47 pm
Recently there was a case from a fast food place. The Assistant Manager was classifed as Exempt. However, this person had to cook food before the first shift arrived and actually has his back to staff so could not supervise staff. The ruling came in favor of the employee that allowed O.T and a Non Exempt status.
October 23rd, 2008 at 1:42 pm
Wow, I disagree withthis ruling. Defining a position as ‘managment’ and then having the person; putting the person in the position to have to do; or primarily doing task level work is a violation of the FLSA stadndard of exempt. In fact it sounds more like a pretext to get wage free labor more than a mangement position. This is wrong.
October 24th, 2008 at 6:54 am
Straight to the point……… Managing is just that “Managing”. While we look at the word only- “Manage”-To direct ; control we have to consider that there are times when work is so heavy that it requires additional labor, this is when the Manager gets involved. There are several things happening here, the manager at the same time is allowing the personell to see that he or she is not beyond completing the same tasks they do. I could go on and on here, if you see this as an area you do not agree with than maybe Managing is not for you.
October 27th, 2008 at 8:24 am
Chris
You have done a fine job in slaughtering the term ‘management’ according to how FLSA defines it. Of course to use your people (or misuse them) in any manner you so describe happens to be why there are FLSA rules and guidelines are written.
Now I don’t know for certain anymore than you do what all of the specifics are other than what is reported in the article. However I and we here in this workforce choose to honor our people by acting in accordance with the law. We honor our people by respecting the definition of management we put them in. If that is a misunderstanding of the word ‘management’ then perhaps management is not for you.
November 3rd, 2008 at 6:59 pm
This is the area that no one at the DOL will give clear definition for classifying employees. Administrative, Executive, and Professional exemptions all have vague language that boggles the mind.
To qualify for the executive employee exemption, 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.
To qualify for the administrative employee exemption, the employee’s primary duty must be 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 the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
To qualify for the learned professional employee exemption, the employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and
judgment; the advanced knowledge must be in a field of science or learning; and the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
As a student of history, the FLSA was started to get more people employed. Employers to that point were happy to work one person 80 hours per week rather than hire two. In order to make the idea acceptable to business, the exemptions were created. Generally, those exempt were compensated well compaired to their “hourly” counterparts. However, today, many exempt persons make less than their hourly counterparts when factoring in overtime.
November 13th, 2008 at 7:21 pm
She should be happy that she has a job and stop complaining.
November 14th, 2008 at 2:27 pm
To Charlene,
To be American is to voice complaints and be heard. As a nation, we had a problem with being ruled by Kings and religious leaders. We had a problem with being ruled by “robber Barons” in industry. From the complaints and the response to those complaints we have been vibrant and competitive.
In the communist countries, it has always been, “Be glad for what is provided and stop complaining.”
There is a sense of “unfairness” when an exempt person is asked to absorb the duties of a non-exempt position without any change in compensation. I have had this happen to me and it irks me that an hourly staff person can come to work with me and go home at the same time as I do, and they make more compensation with overtime. It further irks me that I spend many hours doing the same menial tasks as the hourly staff and am expected to also be “responsible” for large portions of the company. And finally, it irks me that I have spent good time and money to get the training and education to do what I can do, yet I am not as financially compensated as a younger worker straight out of high school. Oh, by the way, I am glad I do have a job. Being an older Veietnam Era Veteran I know how easy it is to find yourself unemployed because employers would rather have young workers to mold with less health problems.
November 15th, 2008 at 4:38 pm
It still apperas to me that a lot of people do not understand the FLSA on exempt status accprding to FLSA. Mike R. posted it accurately and I will only add that the definitions have to be more than just what an employer writes as an expectation. If the employer is not living up to the exempt rules and is using a manager for primarily task level work then they are in violation of FLSA. If the employer wanta a task level worker then they must be paid according to the FLSA statute.
Charlene. Sorry but that is a callous outlook that should have long ago been put aside. If you are the H/R person then you are an advocate of employment law. If the employee is being worked in violation of employment law an H/R responsibility would become making sure the employee is being treated fairly and certainly not dismissing a wrong as “being happy to have a job.” That is why there are so many laws out there now. Trying to do the wrong thing the right way is not a good H/R trait. I’m not directing this at you on a personal level just that I highly disagree with any summation that dismisses rather than concluding based on law.
November 15th, 2008 at 4:40 pm
1. It still appears to me that a lot of people do not understand the FLSA on exempt status according to FLSA. Mike R. posted it accurately and I will only add that the definitions have to be more than just what an employer writes as an expectation. If the employer is not living up to the exempt rules and is using a manager for primarily task level work then they are in violation of FLSA. If the employer wants a task level worker then they must be paid according to the FLSA statute.
Charlene. Sorry but that is a callous outlook that should have long ago been put aside. If you are the H/R person then you are an advocate of employment law. If the employee is being worked in violation of employment law an H/R responsibility would become making sure the employee is being treated fairly and certainly not dismissing a wrong as “being happy to have a job.” That is why there are so many laws out there now. Trying to do the wrong thing the right way is not a good H/R trait. I’m not directing this at you on a personal level just that I highly disagree with any summation that dismisses rather than concluding based on law.
(Sorry for the misspelled words)