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Is An Assistant Manager Exempt From Overtime Pay Requirements?

Published By | Mar 17, 2022 | Employment Law, Wage: Minimum Wage, Wage: Overtime |

There is a common misconception that just because an employee is paid a salary or called a manager or assistant manager, that employee is exempt and not entitled to overtime pay at time and a half. Indeed, this type of misclassification is a significant form of wage theft perpetrated by companies every single day.

Do all employees earn overtime pay?

Best Wage and Hour Attorney Answer: The Fair Labor Standards Act (“FLSA”) and most state laws require most employees be paid at least the higher of the federal or state minimum wage for all hours worked as well as overtime pay at time and half the employee’s regular rate of pay for all hours worked over 40 hours in a designated workweek (any consecutive seven day period designated by the employer). Most employees, however, does not mean all. The FLSA at § 13(a)(1) creates several categories of employees who are exempt from both the minimum wage and overtime pay requirements set forth in the FLSA. Each category of exempt employees identifies certain criteria, which all must be met, in order for the employee to be considered exempt. A common requirement is that the employee must be paid at least $684 per designated workweek on a salary basis. Our wage and hour attorneys have addressed some of these exemptions before. (Best Law Reads: Are Farm Workers Entitled To Minimum Wage And Overtime? Help, I Need The Top Wage Theft Lawyer In Ohio!; As An IT Employee, Should I Get Overtime Pay? I Need A Lawyer!; Top Overtime Wage Attorney Reply: Am I Entitled To Overtime If I’m A Manager In Name Only?; Top Attorney Answer: Do I Get Overtime If I’m Paid On Commission?)

What job titles are exempt and nonexempt from overtime pay?

Best Overtime Pay Attorney Answer: Under the FLSA, job titles have very little, if anything, to do with determining the exempt status of an employee. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations. “The FLSA requires the employer to make FLSA exemption decisions based on the employee’s actual job duties, not the employee’s job title.” Martin v. Indiana Michigan Power Co., 381 F.3d 574, 585–86 (6th Cir. 2004). As such, courts will typically look to any written job description created by the employer as well as evidence showing what the employee did on a day-to-day basis to determine whether or not the employee qualifies as exempt from FLSA requirements. Employers carry the burden to show that a specific exemption applies.

Are assistant managers exempt from overtime pay?

Best Wage Theft Lawyer Answer: The answer to the question is best resolved by looking at the job description and not the title given to the employee by the employer. The FLSA exemptions that are typically used to evaluate managers’ and assistant managers’ exemption status are the executive and the administrative exemptions.

Who falls under the executive exemption for overtime pay requirements?

Best Overtime Attorney Answer: To establish the executive exemption, the employer must show all of the following requirements apply to the employee:

  1. The employee must be paid on a salary basis of at least $684 per week. Even if an employee is paid at an hourly rate and makes more than $684 per week, this requirement is not met.
  2. The employee’s primary duty must be management of a customarily recognized department or subdivision. Principal duty means the principal, most important function of that employee’s job. “Customarily recognized department or subdivision” has been defined by the Department of Labor (“DOL”) regulations as units with “a permanent status and a continuing function.”
  3. The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent.
  4. The employee must have the authority to hire or fire other employees, or the employee’s recommendations must be given particular weight.

If there is conflicting evidence on any of the above requirements, the dispute of fact will be decided by the jury.

Who falls under the administrative exemption for overtime pay requirements?

Best Overtime Lawyer Answer: To establish the administrative employee exemption, the employer must present sufficient evidence that meets all of these criteria:

  1. The employee must be paid on a salary basis of at least $684 per week. Hourly pay of more than $684 per week will not satisfy this requirement.
  2. The employee’s primary duty (i.e., principal, most important part of the job) 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;
  3. The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Exercising discretion and independent judgment “implies that the employee has authority to make an independent choice, free from immediate direction or supervision.” 29 C.F.R. § 541.202(c). However, an employee’s job may satisfy this qualification “even if their decisions or recommendations are reviewed at a higher level.”  Factors that will be considered include: “whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.” 29 C.F.R. § 541.202(c). The regulations further provide that exercise of discretion and independent judgment “must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.” 29 C.F.R. § 541.202(e).

A good example is provided in Bigger v. Facebook, Inc., 947 F.3d 1043, 1055 (7th Cir. 2020). In this case, Facebook argued that Susie Bigger, while working with clients and internal experts, was expected to perform duties “with a significant amount of autonomy and independence.” On the other hand, Bigger argued that she after taking direction from clients and her supervisor, she simply implemented prescribed procedures from manuals, scripts, and templates. Bigger further testified that she basically just relayed information and followed outlined instructions and troubleshooting guides. At her depositions, Bigger also testified that her client recommendations originated directly from reports generated by Facebook’s analytical tools after she simply plugged in data into the system; and that her client recommendations were either transmitted from other Facebook employees or had to be approved by her manager and client partner. Based on this evidence, the United States Court of Appeals for the Seventh Circuit found that the employer failed to conclusively meet its burden and thus, held: “we cannot conclude that, as a matter of law, Bigger customarily and regularly did more than apply well-established techniques, procedures, or specific standards prescribed by Facebook. In sum, the submitted evidence does not establish all the facts necessary to determine whether Bigger fits the administrative exemption. Facebook is therefore not entitled to summary judgment.”

How do companies get away with not paying overtime?

Best Employment Lawyer Answer: The biggest advantage that employers have in not paying overtime is that employees don’t know any better; and that when employees think there might be a problem, they don’t know how to get help. If you even wonder if your employer is cheating you out of all of your rightfully earned wages, be it for minimum wage or overtime compensation, reach out to the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Our wage and hour lawyers will best advise you regarding your rights under the Federal Fair Labor Standards Act and Ohio Minimum Fair Wage Standards laws. If you even think that you may be entitled to overtime pay that you are not being paid, call our Cleveland, Columbus, Boardman, Detroit, Cincinnati and Toledo attorneys right now. Do not hesitate. The longer that you wait, the more your employer is taking advantage of you.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me overtime if I’m a store manager”, “My paycheck is does not have all of my overtime pay” or “What do I do if my job refuses to pay time and half even though I’m working 10 hours of overtime per week,” the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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