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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6263
Experience:  Significant experience in all areas of employment law.
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I was hired to be a General Manager at a brand new fast casual

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I was hired to be a General Manager at a brand new fast casual restaurant before they opened their doors for the first time. I was put on salary and was told I am an exempt employee due to my duties of managing the all facets of the restaurant and basic duties of making food, cleaning, and working the register would be left to the team of employees I had below me.

From the first day the store opening through the first 35 days I worked every day, over 15 hours each day with 30-60 of break for each of these days. In these days I would spend 10+ hours doing the work of the employees I had hired. These included setting up the food line, food prep, working the line, making food for customers, working the register, bussing tables, sweeping, cleaning, and washing dishes. This was due to the store being understaffed because the owner would not agree put any extra labor to handle the amount of customers the store received.

After my first day off on day 36 I went on to work 6 days a week for another 40 days at 14 hours a day. These days consisted of the same type of workload where 10+ hours of my day were spent doing the menial labor of the store and not enough time was left for me to manage, market, and help grow the business.

For the following 7 months the amount of time I spent working as a regular employee and a manager was split 70-30. Due to differences of opinions with the owner I was let go. The owner still owes me money from expenses made for the restaurant and mistakes on paychecks. I was told recently that I should not be an exempt employee due to the lack of time I spent actually managing the restaurant and should have been put on hourly and should be entitled to over time for the the hours I worked. Is this correct and should I go to the labor board with my issue?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.
Good afternoon and thank you for entrusting me to answer your question. I will do everything I can to assist you.

An individual under the circumstances you describe is likely improperly classified as exempt pursuant to the managerial exemption from overtime. In order to be exempt pursuant to the managerial exemption from overtime, California law provides that an employee must "primarily" engage in the following duties and enjoy the following discretionary authority.

- Direct the work of at least 2 or more employees
- Exercising discretionary power
- Have the authority to hire and fire employee
- Have the ability to make comments and suggestions about personnel matters that are given weight by the employer.

The term "primarily" as used in California Code of Regulations, title 8, section 11040, subdivision 1(A)(2)(f) ("primarily engaged in duties that meet the test of the exemption," italics added) is defined to mean "more than one-half the employee's work time." (Cal. Code Regs., tit. 8, ? 11040, subd. 2(N).)

Since it would appear that less than half of your work time was performing tasks which would satisfy the managerial exemption from overtime, exemption would typically be improper and grounds for a wage claim would exist, which you could pursue through the Department of Labor Standards Enforcement.

To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 11 months ago.

I kept a spreadsheet of my hours worked each day. I took my salary wage and figured out the hourly based on a 40 hour work week. When I calculate the pay including the overtime pay I see that I am owed over 30k. Would I be able to recover this through the labor board?

Expert:  Patrick, Esq. replied 11 months ago.
Ron,

Thank you very much for your reply.

Yes, you would absolutly be able to make a claim to recover this throught he Labor Board, and your methodology of calculation is legally sound. The facts you descirbe present a rather strong cause of action.

Good luck, and please let me know if I can be of any further assistance to you.
Patrick, Esq., Lawyer
Satisfied Customers: 6263
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 2 other California Employment Law Specialists are ready to help you

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