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IN EMPLOYMENT LAW

Assistant Manager Misclassifications

Many assistant managers paid “on salary” are actually entitled to overtime under the law. In order to figure out whether an employment position should be paid out on a salary or an hourly basis, the Fair Labor Standards Act (FLSA) has established criteria to help employers and employees decide on the proper payment procedures. Unfortunately, categorizing employees as hourly employees is often not as appealing to an employer because it means they must pay overtime when an employee works in excess of 40 hours per week. In order to cut down on costs, employers may wrongfully classify workers as salaried by giving them a job title that is commonly associated with a salary pay. A common example of this would be to give an employee the title of assistant manager. However, just because an employee is assigned a job title that is traditionally considered a salaried position does not mean they are exempt from receiving overtime.

The FLSA’s criteria for determining which positions can be exempt from receiving overtime can be complex, but is generally broken down into three categories which an employee can fall under. They are the administrative, executive and professional exemptions. Under these categories the assistant manager position can be considered administratively or executively exempt only if he or she has the authority to hire and fire employees, create employee schedules, and promote and discipline them.

If an assistant manager cannot perform these tasks as part of their job without clearance from a superior, then they have likely been classified incorrectly and are entitled to receive minimum wage and overtime pay for hours worked over forty per week. It is an employee’s job duties and responsibilities that actually determine whether or not they are exempt from receiving overtime under the FLSA. If an employer intentionally misclassifies an employee as exempt in order to avoid paying overtime it is illegal and actionable. This occurs frequently in the retail, hospitality and banking industries.

Some common non-exempt assistant manager responsibilities include any of the following non-managerial duties:

  • Taking orders
  • Answering the phone
  • Stocking shelves
  • Operating the cash register
  • Filling in for an absent manager
  • Preparing food
  • Cleaning

If an assistant manager finds them self completing the majority of these tasks on a daily basis, it is possible that have been incorrectly classified as exempt and are probably owed minimum wage and overtime pay under the FLSA.

Assistant Manager Misclassification Lawsuits in the News:

Unfortunately, the misclassification of assistant managers has become a widespread issue due to companies possibly being more inclined to incorrectly classify this position as exempt in order to cut costs and avoid paying overtime wages. Consequently, there have been many class action lawsuits filed on behalf of assistant managers nationwide to help recover back wages. Some noteworthy settlements can be found below:

  • Duane Reade was hit with a lawsuit claiming they misclassified their assistant store managers as exempt from receiving overtime pay. The lawsuit also claims that despite a previous lawsuit against the company for the same exact violations the company continued to require this position to complete non-exempt work. These non-exempt job duties included stocking and organizing shelves, cleaning, taking out the garbage, and performing customer service. Duane Reade agreed to settle for $13.5 million.
  • An IHOP franchisee in New York agreed to pay $40,000 to a single former assistant manager in owed wages. The former employee alleged that they were misclassified and denied overtime pay when consistently working over 40 hours per week.
  • The Bob Evans restaurant chain resolved a class action for unpaid overtime for $16.5 million for a group of misclassified assistant managers. The workers in this position alleged their job duties consisted mostly of non-exempt responsibilities such as cooking, cleaning, and operating the cash register.

RECORD SETTING AWARDS AND SETTLEMENTS

FOR OUR CLIENTS


$19,100,000

$19.1 Million for Tipped Restaurant Workers.

Workers such as servers, bussers, runners bartenders, barbacks and other tipped workers at a large national casual dining chain alleged they were owed wages. Their claims included but were not limited to: unpaid overtime, spread-of hours, misappropriated tips, uniform-related expenses and unlawful deductions.

$15,900,000

$15.9 Million for Personal Bankers.

The firm was able to recover overtime compensation for personal bankers and others similarly situated at a national bank that operates hundreds of branches throughout the United States. Employees in affected positions claimed they were required to work more than 40 hours a week in order to meet sales quotas but were not compensated overtime for their pay.

$14,500,000

$14.5 Million for Spam Text Victims

Fitapelli & Schaffer was able to recover damages for recipients of unwanted promotional text messages from a popular young adult clothing retailer. The clothing company allegedly violated the Telephone Consumer Protection Act by sending text messages to recipients’ cellular phones without their prior express written consent.

$7,000,000

$7.0 Million for Bank Loan Officers

The firm was able to recover overtime compensation for loan officers at a national bank that operates more than hundreds of branches nationwide. Employees in affected positions claimed they were required to work more than 40 hours a week in order to meet sales goals but were not compensated overtime for their pay.

$5,900,000

$5.9 Million for Commissioned Car Salesmen.

One of the largest auto dealerships in the NYC Metropolitan Area agreed to pay owed wages to its car salesmen. The company was accused of failing to pay salesmen the proper minimum wage, overtime pay, commissions, and made unlawful deductions from their earned wages in violation of federal labor laws.

$4,300,000

$4.3 Million for Personal Bankers

Even though personal bankers at this nationwide bank were classified as exempt from receiving overtime pay, the company routinely required them to work in excess of 40 hours per week. There are federal laws that help protect workers from misclassification and in this situation; Fitapelli & Schaffer was able to recover unpaid overtime for personal bankers throughout the United States.

$4,300,000

$4.3 Million for Entertainers at Gentleman’s Clubs

F&S represented entertainers at a popular gentleman’s club in New York City that claimed the club failed to pay them the proper wages. The entertainers were able to recover owed wages that included unpaid minimum wages, overtime pay, spread-of-hours pay, unlawfully retained tips, unlawful deductions, and uniform-related expenses.

$3,600,000

$3.6 Million for Tipped Employees at Upscale Restaurant

Tipped workers alleged that a Mexican Michelin rated restaurant with 17 locations denied them overtime pay, minimum wages, and call-in pay. Our firm was able to recover wages for these tipped employees that included servers, bussers, bartenders, food runners and barbacks.

$3,400,000

$3.4 Million for Assistant Managers at Bank

Fitapelli & Schaffer successfully recovered unpaid overtime for assistant managers on a salary at a bank with locations nationwide. The salaried workers argued that they were wrongfully classified as exempt from receiving overtime when working over 40 hours per week.

$3,000,000

$3.0 Million for Bank Loan Officers

The fast food chain allegedly misclassified its assistant managers as salaried workers and considered them exempt from receiving overtime pay when working over 40 hours per week. Fitapelli & Schaffer was able to recover overtime compensation for all of the popular fast food chains’ assistant managers nationwide, with the exception of California.

$2,836,000

$2.9 Million for Tipped Restaurant Employees.

Fitapelli & Schaffer was able to recover unpaid minimum wages, overtime, spread-of hours, and unlawful deductions for tipped restaurant workers at a popular dining chain. Affected workers included servers, bussers, runners bartenders, barbacks and other tipped workers.

$2,250,000

$2.25 Million for Tipped Workers at Chain Sports Bar

proper minimum wage and overtime. Fitapelli & Schaffer helped the workers recover owed wages to the following positions: servers, bussers, bartenders, and other tipped workers under federal and state labor laws.

$2,000,000

$2.0 Million for Bank Loan Officers

Fitapelli & Schaffer was able to successfully recover unpaid overtime for loan officers at a nationwide bank that operates over one thousand locations across the United States. Loan officers for the company alleged that even though they were hourly employees and consistently worked over 40 hours per week they were working off the clock and not getting overtime pay.

$1,950,000

$1.95 Million for Health Care Workers

A New York based health insurance provider allegedly had its health care workers working over 40 hours per week but required they submit weekly timesheets that only showed they worked 37.5 hours. Fitapelli & Schaffer was able to successfully recover compensation for unpaid wages, overtime and spread of hours pay.

CONTACT

FITAPELLI & SCHAFFER LLP


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