We have lots of people call our office every day asking this very question; and the answer is……. it depends.
Just because you receive a salary and your employer calls you a “manager” does not mean you are not entitled to overtime pay for hours worked over 40. In order for your employer to avoid paying you at 1.5 times your normal rate of pay for hours over 40, certain requirements must be met
Most of these requirements are based on your actual job duties, just because your employer calls you a manager does not mean you are actually exempt. For example, if a fast food restaurant hires someone as an “assistant manager” but their job duties are running the cash register and delivering food to the customers- they are entitled to overtime even though their job title may indicate they are management.
In order to avoid paying overtime, your job must meet these requirements:
$455 minimum salary per week
If your don’t make at least $455 per week- you are not going to be exempt from receiving overtime under the executive/management exemption to the Fair Labor Standards Act. Of course if you make more than $455 per week- this does not mean you are automatically exempt from receiving overtime either. Your job also must meet certain job requirements as well. :
To qualify for the executive employee exemption, in addition to receiving a minimum of $455 per week in pay ALL of the following job duties must be met:
• 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.
The term “primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to:
• the relative importance of the major or most important duty as compared with other types of duties;
• the amount of time spent performing the major or most important duty;
• the employee’s relative freedom from direct supervision; and • the relationship between the employee’s salary and the wages paid to other employees for performance of similar work.
The amount of time spent performing the specific duty can be a useful guide in determining whether such work is the primary duty of an employee. Employees who spend more than 50 percent of their time performing a specific duty will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing requires that exempt employees spend more than 50 percent of their time performing a specific duty.
Employees who do not spend more than 50 percent of their time performing their major or most important duty may nonetheless meet the primary duty requirement if the other factors (listed above) support such a conclusion.
Again, this is going to be based on a case by case basis and are very fact specific. As you can see from some of the definitions, lots of gray areas exist. We have handled many cases involving employees who were not receiving overtime because of employers claiming they were exempt when in fact they were not.
If you have any questions as to whether or not you should be receiving overtime- please feel free to contact our Tennessee Overtime Lawyers and we will be glad to answer any questions you may have and possibly handle the matter for you.