I manage a small retail store for a national company. I am supposed to have three full-time employees working for me, though between PTO and turnover, I frequently have only two. There are about 80 hours a week that need to be covered, so most of the time one person is working in the store alone. On weekends the store is very busy, and most of my time is spent helping customers instead of actually supervising or otherwise engaging in managerial duties. I am specifically curious as to if I meet the executive exemption for the following areas:

- Who customarily and regularly directs the work of two or more other employees therein
Three people are responsible to me, but most of the time they work alone. I spend only a few hours a week actually training them, coaching them, or supervising them.

- Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
This is something I'm very curious about - before my current manager came in, I was clearly the go-to guy on personnel in my store. Now, while my opinion is solicited, it doesn't seem to get much weight. My last hire was completely decided by other people - I didn't even meet him until he started working. I also could not fire another employee until I had a massive paper trail to present to my boss and multiple requests, but he fired a different employee from my store after a single warning that he directed me to deliver to him. It seems like no hire or fire decision is made unless both my boss and a peer of mine agree with me - if either of them disagree, they ignore my recommendations.

I put a lot of effort and time into this job, but I think I'm misclassified as an exempt employee. Any thoughts?

The executive exemption is not the only possibility. Have you looked at the administrative exemption? That could apply as well, depending on your duties.

I looked at administrative, and I'm most definitely not, IMO. My job function is supervisory and sales oriented. I am the top man in the store - I report to a manager who is based in another store. Heck, I don't even have an office.

retlmanager: I manage a small retail store. I am supposed to have three full-time employees working for me, though between PTO and turnover, I frequently have only two. There are about 80 hours a week that need to be covered, so most of the time one person is working in the store alone. On weekends the store is very busy, and most of my time is spent helping customers instead of actually supervising or otherwise engaging in managerial duties... I think I'm misclassified as an exempt employee. Any thoughts?

The executive (managerial) exemption applies to persons primarily (more than 50%) engaged in duties that include interviewing, selecting, and training employees; setting and adjusting employees’ rates of pay and hours of work; evaluating employee’s efficiency for the purpose of recommending promotions or other changes in their status; handling employee complaints and grievances and disciplining employees when necessary; determining the type of materials, supplied, machinery, or tools to be used or merchandise to be bought, stock, and sold; and providing for the safety of the employees and the property. Production-type duties such as preparing the product for sale, selling, or organizing stock, will not be considered exempt duties. Only duties that are “closely related” to management functions will be considered exempt.

Bottom line: The answer to your question depends on whether you spend more than 50% of your time performing managerial, exempt-type duties vs. non-exempt, production-type duties.

If that's the case, it's pretty clear that I'm not meeting the exemption. I don't think I've ever spent more than 50% of my time on tasks of that kind. The question would probably come down to how much time I spend supervising, which seems to be less and less all the time.

It's unfortunate, but I might need to talk to a lawyer.

I looked at administrative, and I'm most definitely not, IMO. My job function is supervisory and sales oriented. I am the top man in the store - I report to a manager who is based in another store. Heck, I don't even have an office.

Yes, but it is not your opinion (no offense) which drives the classification decision. Take another look at the Administrative classification and make sure that your company can not support a claim that you meet that particular classificaition. Many company's routinely use that classification instead of Executive because it is often easier to legally support. Employers do not need to support the most obvious Exempt classification. Sucessfully supporting any Exempt classification is adequate for the employer's purposes.

My last employer had a fairly standard method of supporting the Exempt classification which basically took the formal job description, the closest legal fitting DOL Exempt classification (not necessarily the most obvious) and a brief standard layout memo supporting the classification decision. They often used the Administrative classification instead of Exempt even for supervisors/managers because it was often easier to support.

No offense taken - that's why I'm asking. :)

I think the kicker for not meeting the administrative exemption is here:

- Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, or
- Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, or
- Who executes, under only general supervision, special assignments and tasks, and
- Who is primarily engaged in duties which meet the test for the exemption.

I don't assist anyone. I report to my manager, but that's it.

My job doesn't require any kind of specialized or technical knowledge. In fact, I've only received one training course of any kind, a kind of "How to Manage Yourself" time management seminar.

I also don't execute any kind of "special assignments", it's just the day-to-day operation of the store.

Really, I think my job is closest to being a first line supervisor, with the only real difference being there is no one who in turn directly supervises me. I do the work my staff do, but I also have supervisory and some legitimately managerial tasks to accomplish as well.

If I can make a suggestion, repost your question on the AHI website. There is someone active on that site who used to work for federal DOL and is a real whiz at their classification rules. Of course, the state DOLs can and do have a different view of this then the federal DOL.

http://www.ahipubs.com/cgi-bin/ubb/forumdisplay.cgi?action=topics&forum=Employment+Law+Talk&number=1&DaysPrune=45&LastLogin=

Also, I missed that this is a California question. This state has tougher Exempt rules then the federal rules, including a higher required weekly salary. The following website may be of use.

http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

retlmanager: I do the work my staff do, but I also have supervisory and some legitimately managerial tasks to accomplish as well.

As I posted above, it come down to a counting game: Do you spend more than 50% of your time performing exempt-type duties? If not, you most likely are due overtime premium pay.