The Fair Labor Standards Act, covering pretty much all
workers in the U.S. was designed to provide certain protections to workers.
This is the law that sets the federal minimum wage. This is the law that
requires employers to pay overtime for all hours worked over forty per week.
The protections provided by this law, as well as numerous state
laws, cost employers money. Most employers accept this as a cost of doing
business and comply with the laws. Other, less scrupulous employers, try to
avoid their obligations, and sadly, there are ways to accomplish this. That is,
an employer can save money on the backs of their employees.
In this article I’ll discuss the manager ploy. The Fair
Labor Standards Act, as do related state laws, contains exemptions. This law
was intended to protect regular employees, but in drafting it, Congress
recognized that to apply it to everyone, across the board could create
problems. Ergo, exemptions were put into place.
One such exemption is for
management employees. The Fair Labor Standards Act provides that the minimum
wage and overtime provisions do not apply to employees that hold bona fide
management positions.
Unscrupulous employers have jumped all over this exemption,
especially in lower paid, small operations, such as convenience stores, smaller
retail stores and smaller offices.
We call it the Now You’re a Manager game. But it’s not a
game. It’s a deliberate ploy to deprive you of what you are entitled to under
the law.
The good thing is, that the ruse will seldom stand up to
scrutiny. These employers are the poster children of the adage “a little
knowledge is dangerous”. They read, or somebody tells them that managers do not
have to be paid overtime or minimum wage and that is as far as they get. They
believe that by simply taking an employee and calling them a manager, they have
successfully circumvented the law.
And sadly, if you don’t know any better, and accept it, they
have.
There are thousands of employees working in small retail
outlets, small offices, and convenience stores who have been duped into
believing that they have actually been promoted, and are proud of the prestige
that comes along with the title “manager”. They do not realize that all they
have been given is the proverbial shaft, as they toil fifty and more hours a
week for a set “salary” that includes no overtime and when averaged out over
the actual hours worked, does not even come up to minimum wage.
To protect yourself, you have to know the complete law.
Yes,
the FLSA exempts managers, but they have to really be managers and that means
much more than some sleazy employer hanging the title manager on them.
So if you find yourself in this situation, that is you’ve
been designated a manager, but that position is in name only, what should you
be looking for and what should you do?
There is an old adage from the world of poker that goes
something like this…”when you are in a poker game and can’t figure out who the
patsy is in the first thirty minutes, you’re the patsy!”
And so it is in the world of “management”. If your title is
manager and you can’t figure out what the hell you’re managing, then you’re probably
the patsy.
So what should you be looking for?
Easy.
What are you doing
at work?
Are you doing administrative things, like setting schedules, doing
performance reviews of other workers, ordering inventory, or, are you out there
doing the same thing that everyone else is doing?
Are you making more money
than other employees when you factor in overtime and actual hours worked?
Do
you have real authority? For example, can you hire and fire someone, or do you
need your boss’s permission to do that?
If the answers to these questions are
coming up wrong, you’re the patsy.
So, what can you do? Plenty actually.
It should come as no surprise that this ruse has been tried
many times before, and in most cases not very well. A lot of employers are
under the mistaken impression that in order for an employee to be exempt from
minimum wage and overtime requirements, it is enough to simply designate them
as “managers”. Fortunately for you, life is not that simple. Federal and State
governments have formulated a number of tests to determine whether or not an
employee is a bona fide manager, and ironically, the job title is among the
least important.
So if you think you are a faux manager, in that position of
honor and esteem only so that your employer doesn’t have to pay you any
overtime, start by confronting your employer.
If that doesn’t work, and it probably won’t, you can file a claim for unpaid
wages with the labor department in your state, followed by a lawsuit under
either the FLSA or your state’s equivalent.
Be sure to keep careful records and copies of any and all internal
company documents and records that pertain to employment…not just yours but
other people doing the same kinds of work.
Just as with other things we warn your about, Be Your Own
Lawyer will gladly provide a free case review. So if you think you’re the
patsy, get in touch with us…we’ll look at what you send us and let you know if
you have a claim or not. There is no cost and no obligation.
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