The Manager Exemption to Overtime and Minimum Wage from an Employee's Perspective.

Employers are generally required to pay employees minimum wage for all hours worked and overtime pay for all hours worked over 40 hours each workweek pursuant to the Fair Labor Standards Act (the “FLSA”). Overtime is defined as one and one-half times the regular rate of the employee’s pay.

However, the FLSA provides certain exemptions to the minimum wage and overtime requirements, including under what is known as the executive employee exemption. This exemption is sometimes called the manager, or management exemption, although it applies to more job titles/categories than just managers.

Ohio and Federal law do not permit an employer to fail to pay minimum wage and overtime just because the employer calls certain employees managers or supervisors. This is especially true when the “manager” has no actual control of the employees they supervise, spends the vast majority of their time performing manual labor, or has little or no control over who is working under them – such as no actual ability to supervise, discipline and/or terminate workers. If all decisions of the “manager” (or “assistant manager”) come from above, the employee may be misclassified and entitled to overtime and minimum wage. The manager must also direct the work of at least two or more other full-time employees, or their equivalent (such as four part-time employees).

It is also common for employers to pay “managers” an hourly rate but with no overtime. This violates the FLSA, because the employee must be paid on a “salary basis” of not less than $455 per week.  A “salary basis” means that the employee must receive a predetermined amount each pay period, and this amount cannot be reduced because of variations in quantity or quality of work. If the employer makes deductions from the “salary” for absences less than a day then the employee may be misclassified and entitled to overtime compensation and minimum wage.

In sum, under the FLSA, in order for an employee to qualify as an executive employee, the employee must:

(1) be compensated on a salary basis at a rate not less than $455 per week; (2) customarily and regularly direct the work of at least two or more other full-time employees; (3) have a primary duty of managing the enterprise (or a recognized department or subdivision thereof); (4) have authority over the employees he/she supervises, such as selecting and terminating employees, or the executive’s suggestions are given particular weight.

If an employee does not meet each of these requirements, the employee may be misclassified and entitled to unpaid back pay, liquidated damages, costs and attorney fees.

If you have not been paid for all time worked Attorney Kevin M. McDermott II can help. Feel free to call Attorney Kevin M. McDermott II at (216) 367-9181 for a Free Consultation and to discuss your options.

The Wrongs of Working off the Clock

Let us start by saying that common sense and our universal understanding morality tell us that people deserve to be paid what they earn. Forcing someone to work for free or for a subminimum wage not only goes against Congress’s directive but a civilized society’s understanding of what is right and wrong. In the employment context, however, it is far too common for employers to deny employees all wages for all hours worked. This can occur because of an employer’s simple oversight on one end to on the other an employer's willful scheme to deprive workers wages to increase the bottom line. An employer’s unlawful failure to pay for time worked can take many forms, including:

• Forcing employees to answer phone calls after hours without compensation;

• Refusing to pay employees for travel time when the destination is greater than the time it takes to get to the usual place of work or refusing to pay for travel time during the workday;

• Requiring employees to arrive at work before the shift starting time. For example, where an employer requires employees to arrive at the workplace 15 minutes before the scheduled start time without pay;

• Failing to pay employees for the time it takes to suit up a uniform in some circumstances;

• Making paycheck deductions automatically for lunch breaks even though the employee does not always take a break or works through the lunch break;

• Rounding employee start times and end times predominantly to the employer’s benefit;

• Making seemingly random deductions to paychecks;

• A policy of reducing wages or refusing to pay for employees to attend mandatory meetings or voluntary meetings that ultimately benefit the employer.

The examples above are only a few cases where employees have successfully sued and got back their wrongfully withheld wages. Ohio and Federal Law affords employees the right to recover unpaid wages and in some cases an additional one or two times unpaid wages. Furthermore, in many cases employees are entitled to attorney’s fees and the costs to bring an unpaid wage claim, including in cases involving unpaid overtime compensation and where the employer fails to pay minimum wage for all hours worked.

If you have not been paid for all time worked Attorney Kevin M. McDermott II can help. Call Attorney Kevin M. McDermott II at (216) 367-9181 for a Free Consultation and to discuss your options.