Human Resource Blog

Overtime for salaried baker?

I’m a salaried bakery manager for a chain of 5 restaurants in Iowa. I do have some supervisory duties, but 90% of my time is spent in hands-on baking. Do I genuinely qualify as an exempt employee? Or should I be paid for overtime? Can the employer really avoid overtime simply by giving an employee the title of manager?

Many, many managers are finding themselves in this position during the current economic crisis. They are called upon to work more and more hours, often filling in for hourly employees, without additional compensation. You may very well be an exempt employee, and not entitled to overtime.

Federal law sets fairly strict guidelines regarding what is and is not a salaried exempt position based on the employees primary duties. You are correct that merely changing an employees title, does not change his or her exempt or non-exempt status. However, primary duties does not necessarily mean what the employee spends the majority of their time doing. It means the parts of the job that are most important, or most essential. A supervisor or manager can spend almost all of their time filling in for hourly employees, and still be exempt.

There are five classes of exempt employees: Executives, Administrators, Outside Salespeople, Professionals and Computer Professionals. If you supervise 3 or more employees and have the authority to hire and fire them, you probably qualify as an exempt Executive employee. Read more about exempt employees at: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf

For example: Jon is a restaurant manager. He is responsible for revenue and costs, ordering, inventory, hiring and scheduling, as well as supervising employees. Due to the economic crunch, Jon is working 60 hours per week. For 55 of those hours, Jon fills in as a cook or dishwasher. Jon is still an exempt employee and is not entitled to overtime, because his primary duties are controlling revenue and costs, inventory, hiring and scheduling, etc. In addition, Jon is still supervising other employees and monitoring the level of customer service while he is filling in for hourly employees.

However, if the so-called manager genuinely has no decision-making authority, and this is simply an empty title, then the employee is probably non-exempt. In the 1980s, the restaurant chain Howard Johnsons promoted a number of hourly employees to assistant manager. These employees were then required to cook, wash dishes, bus tables and serve food 80 or more hours per week. They had absolutely no decision-making authority — in fact, they did not even set their own schedule. They were not permitted to hire, fire, supervise, interview, inventory, or any of the other primary duties of a restaurant manager. It was a change in title only. The courts ruled that this was illegal, and Howard Johnsons had to pay all these so-called assistant managers for every hour of overtime they worked.

There is an exclusion under the FLSA for employees who work 100% with their hands. For example, an auto mechanic or plumber cannot be an exempt employee — they are always entitled to overtime. However, if an auto service manager spends a portion of his time supervising other employees, in addition to fixing cars, then he can be and exempt employee.

If you still have doubts about whether or not you are an exempt employee, probably the only way to resolve them is to contact the Wage and Hour Division of the U.S.Department of Labor at www.dol.gov.