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Salaried Managers Aren't Always Exempt

October 29, 2000

Q: Recently, I accepted a position as a salaried manager. My company's headquarters and all other satellite offices are out of state. I was told that there would be long days and workweeks initially, until another manager or assistant is hired.

For the last six months I have been required to work eight- to 10-hour days, six or seven days a week. I have complained to both my boss and my boss' boss, but each time I am told that things will be slower the next month. So far I have received no more than four days off a month.

I was told by human resources and a senior vice president at my firm that because I am a salaried employee I have no recourse. Is this true?

--J.C., Los Angeles

A: Unfortunately, employers can take advantage of managers who are exempt from overtime rules, requiring them to work unreasonable hours. Often the only recourse is to quit.

Your employer promised that your long work hours would last only until another manager or assistant was hired. Unfortunately, there apparently were no time constraints on that promise.

Vague promises are sometimes difficult to prove. Six months may still be within the period your employer thought it would take to give you additional help.

Even though you call yourself a "salaried manager," you may not be exempt from overtime rules. If all the offices are out of the state and you don't have an assistant, I question whether you are really a "manager" supervising two or more people more than half of your time--one of the definitions of an exempt employee. Employers often give important titles to employees to try to make them exempt from overtime when they really are not.

If you're not exempt, your employer owes you a considerable sum in overtime compensation. You probably should consult with an attorney or the California Division of Labor Standards Enforcement to determine your status.

If you qualify for overtime, you need to consider whether to make a claim. The company might try some form of retaliation, or could take steps to make you exempt, such as adding assistants under your supervision.

Even if you are exempt from overtime rules, you might want to follow up your oral complaints with something in writing that documents the hours you are working. Do the arithmetic to determine whether your pay is a fraction of what you should be making because of the hours you work, and may even be comparable to that of hourly workers who are paid overtime, but don't have the pressure and responsibility.

Urge your bosses to commit to a date for providing you additional help. In the alternative, ask for a raise to give you fair compensation for your extra efforts.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Employer Determines Eligibility

Q: The company I work for has a policy stating that employees working fewer than 40 hours a week are not full-time and hence not eligible for corporate benefits, health insurance, vehicle use and holidays.

My friend insists that 1,000 hours a year is the cutoff for employee benefits. Can you help with this one?

--C.M., Manhattan Beach

*

A There is no law that says employees who work more than a certain number of hours are entitled to receive benefits. In fact, there is no law requiring that even employees who work full time get benefits.

This is left entirely to the employer's discretion. Of course, market forces may make it difficult for an employer who offers no benefits to find qualified employees.

Sometimes a health insurance plan will require that its participants be employed a certainminimum number of hours per week, but that would be part of a contract between the planand the employer, not a requirement imposed by law.

Employers often will establish minimum-hours thresholds for benefits to avoid having to pay for expensive benefits programs for temporary, casual or part-time employees.

This is entirely legal.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Not Liable for Innocent Mistakes

Q: A co-worker and I share incidental cashiering duties as part of our regular job. Neither of us is a trained cashier. If the final accounting at the end of the day does not match the tallied receipts, can our employer require us to make up the deficit?

--W.P., Camarillo

A: Your employer can require you and/or your co-worker to make up such deficits only if the employer can prove that you or your co-worker engaged in some grossly negligent or intentional act that resulted in the discrepancy. If the employer can prove you stole the money, for instance, the company can require you to pay it back, or can deduct the amount from your paycheck.

If the discrepancy is due to innocent mistakes, the employer can discipline you but cannot require you to make up the deficit.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent shoptalk columns are available at http://www.latimes.com/shoptalk.

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