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Many assistant managers paid 鈥渙n salary鈥� are actually entitled to overtime under the law. In order to figure out whether an employment position should be paid out on a salary or an hourly basis, the Fair Labor Standards Act (FLSA) has established criteria to help employers and employees decide on the proper payment procedures. Unfortunately, categorizing employees as hourly employees is often not as appealing to an employer because it means they must pay overtime when an employee works in excess of 40 hours per week. In order to cut down on costs, employers may wrongfully classify workers as salaried by giving them a job title that is commonly associated with a salary pay. A common example of this would be to give an employee the title of assistant manager. However, just because an employee is assigned a job title that is traditionally considered a salaried position does not mean they are exempt from receiving overtime.

The FLSA鈥檚 criteria for determining which positions can be exempt from receiving overtime can be complex, but is generally broken down into three categories which an employee can fall under. They are the administrative, executive and professional exemptions. Under these categories the assistant manager position can be considered administratively or executively exempt only if he or she has the authority to hire and fire employees, create employee schedules, and promote and discipline them.

If an assistant manager cannot perform these tasks as part of their job without clearance from a superior, then they have likely been classified incorrectly and are entitled to receive minimum wage and overtime pay for hours worked over forty per week. It is an employee鈥檚 job duties and responsibilities that actually determine whether or not they are exempt from receiving overtime under the FLSA. If an employer intentionally misclassifies an employee as exempt in order to avoid paying overtime it is illegal and actionable. This occurs frequently in the retail, hospitality and banking industries.

Some common non-exempt assistant manager responsibilities include any of the following non-managerial duties:

• Taking orders
• Answering the phone
• Stocking shelves
• Operating the cash register
• Filling in for an absent manager
• Preparing food
• Cleaning

If an assistant manager finds them self completing the majority of these tasks on a daily basis, it is possible that have been incorrectly classified as exempt and are probably owed minimum wage and overtime pay under the FLSA.

Assistant Manager Misclassification Lawsuits in the News:

Unfortunately, the misclassification of assistant managers has become a widespread issue due to companies possibly being more inclined to incorrectly classify this position as exempt in order to cut costs and avoid paying overtime wages. Consequently, there have been many class action lawsuits filed on behalf of assistant managers nationwide to help recover back wages. Some noteworthy settlements can be found below:

• Duane Reade was hit with a lawsuit claiming they misclassified their assistant store managers as exempt from receiving overtime pay. The lawsuit also claims that despite a previous lawsuit against the company for the same exact violations the company continued to require this position to complete non-exempt work. These non-exempt job duties included stocking and organizing shelves, cleaning, taking out the garbage, and performing customer service. Duane Reade agreed to settle for $13.5 million.
• An IHOP franchisee in New York agreed to pay $40,000 to a single former assistant manager in owed wages. The former employee alleged that they were misclassified and denied overtime pay when consistently working over 40 hours per week.
• The Bob Evans restaurant chain resolved a class action for unpaid overtime for $16.5 million for a group of misclassified assistant managers. The workers in this position alleged their job duties consisted mostly of non-exempt responsibilities such as cooking, cleaning, and operating the cash register.