Executive or Manager Misclassification
Your employer says that you don’t get overtime because you are a manager, since managers come within the executive exemption from overtime. But are you really an executive? For example, if your employer says your job title is manager, but most of the time you spend waiting on customers, you might be entitled to overtime, because it is not what you are called, but what you actually do, that counts. If you are paid on an hourly basis, and not on a salary basis, you are not an executive under Federal and New York Law wage law and are entitled to overtime. If you make less than $455 per week, you must be paid for overtime hours. If the primary duties of your job do not involve managing at least two employees (or you are not called upon to make recommendations about hiring, firing and promotion of other employees), you are not an executive and you should get overtime.
Managers and assistant managers are often shortchanged when their employer does not pay them overtime.
Courts apply various reasoning in deciding whether employees should be qualified as exempt managers, and it is often not clear on which side they will come down. However, courts have found that employees who the employer considers and treat as exempt are in fact entitled to overtime. For example: Shift supervisors were entitled to overtime when they in reality had no real control of the employees who supposedly worked under their direction or when they had no effective authority to discipline them, or where there so-called managerial functions were performing clerical duties such as calling people to come to work and doing the payroll. A so-called car wash manager who spent 95% of his time doing the same work as the car wash attendants was not exempt. A so-called real estate manager who worked with a crew doing manual labor was not exempt. So-called assistant store managers were not exempt where the actual store manager made the executive decisions, and they spent most of their time doing routine retail duties.In all cases, the courts do their analysis by looking at your actual duties, rather than the job title the employer gives you.
Federal Law and New York State wage law do not permit overtime wages violations just because your employer calls you a manager, when you in fact you mostly do the same work that the workers “under” you do. Over the years, you can lose a lot of money when your employer puts into his pockets the overtime wages that he should have paid you. Nor can your employer subject you to retaliation in New York State or New York City because you complain that you are not really a manager and should be paid overtime wages.
Contact us online or call us at (212) 949-1001 if you think that your employer's harmful actions stem from misclassifying you as a manager and not paying you overtime when most of your duties are the same as the people you “supervise”. We will use our more than 25 years of experience to help you resolve the matter by negotiation or by going to court in the State of New York or New York City.