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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 12554
Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Exempt or nonexempt?? HELP!

Customer Question

I am the "General Manager" of a small business (food service) organization. I am currently salaried, as I was under the impression that I was considered exempt. Now, after doing a tiny bit of research I am no longer sure whether my position would be considered exempt or not. Here is an example of one of the many sites I visited during my research. http://www.pattersonlawgroup.com/am-i-really-exempt I do manage more than 2 people, but the term "manage" only goes so far. Currently, I do the same work that my regular hourly employees do, and then after that work is finished I order inventory, check up with wholesale accounts, and direct labor work (for myself as well as my hourly employees) More than 50% of my shift in one single day is spent doing regular employee work versus manager work. I interview potential new hires, but I am only able to hire or fire someone with consent from the owner of my store while he is present in the store. To me, its as if I am being paid one salary for doing the job of two people. I'm not completely sure of the laws regarding this matter... but I am looking for some guidance in hopes of getting compensated for the time I put in which I was NOT paid for, and to get paid for my future time spent here. Thank you in advance for your help.

Submitted: 3 years ago.
Category: Legal
Expert:  Andrea, Esq. replied 3 years ago.

Good morning, Jessica, my name isXXXXX am a Pennsylvania Licensedd, Practicing Attorney and will do my best to provide you with an Answer to your question and provide you with Excellent Service. Please leave a positive rating; it does not cost you anything additional, but it is the only way that I receive credit for assisting you, Thank you in advance for your understanding,

 

When an employer classifies an employee as "exempt", he cannot deduct anything from the employee's earnings for any extra time that the employee might take for lunch, or if the employee comes in late. However, it is the employer who actually reaps most of the benefits from this classification because the employer can assign a number of different responsibilities to the exempt employee, can require them to work beyond the normal workday, can require them to work weekends, and all without paying any extra or additional compensation to the "exempt" employee for any of the additional hours he puts in, or for any of the additional work that he performs for the employer. Believe it or not, the only thing which the employer must observe is that when the employee's salary is divided by all the additional hours which the employee puts in, he is being paid at least the minimum wage.

 

As you must already know, an exempt employee is not paid overtime, or for any hours he works over and above a 40-Hour week. By the same token, the employer cannot deduct anything from his salary for any time off during the workday. If the employer does so, he would then have the obligation to pay the employee overtime at the rate of time and one-half.

 

If I have not Answered your question, plelase let me know by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

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Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

Customer: replied 3 years ago.
So by "adding all the additional hours... Make sure the employee is being paid atleast minimum wage" do you mean, for example if I put in 50 hours in one week, and another 50 hours in the next, I take the total hours for 2 weeks (100hours) then I divide that by my salary per hour and if that is less than minimum wage then I should be paid atleast enough to make my hourly wage minimum wage?

Customer: replied 3 years ago.
But my real question was, how do I find out if I am legally considered an exempt employee?
Expert:  Andrea, Esq. replied 3 years ago.

Hi, Jessica, Thank you for your reply,

 

Please allow me to give you an example,

 

Assume employee "A" is paid $400 per week. Assume also that "A"'s employer assigned certain responsibilities to A that took 60 hours to complete. If you divide $400 by 60 hours, you find that A is being paid $6.66 per hour which is below the legal minimum wage.

 

In which industry are you employed ? Does the "food service" organization fall in the restaurant category ? Supermarket category ? ?? In which industry would you place your organization ?

 

Thank you,

 

ANDREA

 

 

Customer: replied 3 years ago.
I would consider it food service. It's a pretzel factory, very small business. It is considered labor work I'm pretty sure.

Also, is the "400" per week for employee a before or after taxes? Because that makes a huge difference.
Expert:  Andrea, Esq. replied 3 years ago.

Hi, Jessica,

 

I clicked on the link that you provided in your initial post. The link is to California rules and they do not apply to Pennsylvania.

 

Pennsylvania applies the Federal laws and the Pennsylvania Minimum Wage Act in determining if an employee is considered "exempt". Pennsylvania now applies the "Duties and Responsibilities" test in determining whether or not an employee is exempt from overtime pay. In your situation, in order to determine your status, you would examine two categories - Executive and Administrative.

 

1. "Executives" - If primary responsibility is managerial, the employee is exempt. But, if managerial duties are in reality secondary to other responsibilities, then the employee is not really and exempt employee and the employer can be held liable for back overtime pay;

 

2. "Administrators" - If primary duties are to assist the manager, then the employee is exempt. However, if in reality the administrator's duties are more production-related instead of managerial, then the employee is not exempt and the employer is liable for back overtime pay.

 

From your description of your responsibilities, it appears to me that you are not an exempt employee and, therefore, you should be receiving overtime pay for each week in which you worked more than 40 hours,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

Customer: replied 3 years ago.
That is what I thought! So I've been the manager for almost a year now, with many weeks that I worked over 40 hours. How do I go about Being compensated for my time that I was not paid for. Is this something I should get a lawyer for? I'm not exactly sure how to bring this to my employers attention.
Expert:  Andrea, Esq. replied 3 years ago.

Thank you for your reply, Jessica,

 

Your best bet is to file a formal Complaint/Claim with the US Department of Labor, Wage and Hour Division. It is a violation of the Fair Labor Standards Act for an employer to take any retaliatory action or discriminate against an employee for filing a Complaint with the US Department of Labor, or for filing a lawsuit against the employer for violations of the Fair Labor Standards Act. I am providing the District Offices in Pennsylvania below, and you can select the one which is closest to you. You also have the option of filing a lawsuit against your employer for back pay and for an equal amount in liquidated damages, plus Court costs and your Attorneys' fees. You have 2 years from the date of the violation to file your lawsuit (You have 3 years if the employer's actions were willful violations of the Fair Labor Standards Act.)

 

You can obtain more information by calling the US Department of Labor's toll-free number - 1-866-487-9243.. In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation)

 

 

Pennsylvania

 

Philadelphia District Office
US Dept. of Labor
Wage & Hour Division
1617 John F Kennedy Blvd, Suite 1780
Philadelphia, PA 19103

Phone:
(215)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Jim Cain
District Director

Pittsburgh District Office
US Dept. of Labor
Wage & Hour Division
Federal Building
XXXXX, Suite 1416
Pittsburgh, PA 15222

Phone:
(412)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

John DuMont
District Director

Wilkes Barre District Office
US Dept. of Labor
Wage & Hour Division
7 North Wilkes Barre Blvd.
Stegmaier Bldg. Suite 373M
Wilkes Barre, PANNN-NN-NNNN/p>

Phone:
(570)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Alfonso J. Gristina
District Director

 

 

For the names of lawyers with experience in employment law and the Fair Labor Standards Act, please click on the link below:

 

http://apps.americanbar.org/legalservices/lris/directory/main.cfm?id=PA

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

Expert:  Andrea, Esq. replied 3 years ago.

Dear XXXXX, I see that you have had the opportunity to review my Answers. Is there anything that you would like me to clarify? If not, please be kind enough to leave a positive rating so that I can receive credit for researching your question and furnishing you with Answers. The deposit you placed is with JustAnswer and it will not cost you anything additional to leave a positive rating, and it is the only way I can receive credit for assisting you. Thank you in advance for your understanding,

ANDREA