I am trying to figure out if I will be an exempt employee or not. I will be paid a salary of $5000/mo. During three days of the week, I will...

Question

I am trying to figure out if I will be an exempt employee or not. I will be paid a salary of $5000/mo. During three days of the week, I will be supervising 2 employees. Despite being the official manager, majority of my time will be spent serving customers and cooking in the role of the average employee. During 3 days of the same week, I will be supervised by the owner. I will be working 70 hours a week with the title of restaurant manager. Do I qualify as exempt or non-exempt?

Answer

It's a difficult question to answer without knowing more facts. Give me a call at (213) 381-6557 or [email protected]/* */ if you wish to discuss the matter further.

Best,

Ari Leichter

Answer

Mr. Leichter is wrong. It is not difficult at all. At that "salary" and 70 hours a week, you are not making double the minimum wage. So you are automatically non-exempt without any further analysis. I would also add that even if they bump your pay up enough that it works out to $18/hr it is HIGHLY unlikely you would qualify as exempt. Merely having supervisory duties, without actual management discretion and responsibilities, does not make one exempt. Years ago I held a similar position at a restaurant chain. In fact, I didn't even cook and serve unless there was a rush, and I often closed without any other manager present, but I was most definitely NOT considered exempt because I had no real, meaningful management authority or autonomy.

Answer

If you reasonably spend more than half of your time performing non-exempt duties such as cooking, serving customers and other non-exempt duties, then you likely should be classified as a non-exempt employee. However, as Mr. Leichter states, more information is needed to make this determination with any degree of certainty. You should consult with an attorney regarding your exempt or non-exempt status. Many attorneys offer free consultations, so do not let financial concerns stop you from seeking legal advice.

Best of luck,

Tuvia

Answer

Respectfully, Mr. McCormick misstates the law and is wrong. In determining whether an employee is an exempt manager (a.k.a. the "executive exemption'), there is a two-part test: (1) the "salary test" and (2) the "duties test." Both tests must be met in order to qualify for the executive exemption.

The "salary test" is not a matter of dividing an employee's salary by their hours worked and seeing if the result equals double the minimum wage. Rather, the salary test is met as long as the employee "earn[s] a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week." See, Wage Order 4-2001, section (1)(A)(1)(f). 40 hours per week equals 2,080 hours per year (40 hrs/wk x 52 wks/yr), and double the minimum wage is equal to $18/hour ($9/hr x2). Thus, if an employee's salary is equal to at least $3,120 per month ([$18/hr x 2,080] / 12 mos./yr), then the "salary test" is met. Accordingly, if you are a paid a "salary" of $5,000 per month, then the "salary test" is met. (Speak to an attorney regarding whether your monthly compensation is truly considered a "salary"--that is another discussion.)

If the "salary test" is met, then the "duties test" must be examined. Essentially, the "duties test" asks whether more than half of the employee's time is "reasonably" spent performing exempt duties (such as training staff, disciplining, hiring/firing, etc.) If so, then the "duties test" is met.

The above only scratches the surface as to what must be examined to determine whether you are properly classified as exempt. You should definitely speak with an employment attorney who will take the time to ask you questions, analyze all of the facts in your case, and give you a comprehensive answer.

Good luck to you.