I have a question for you guys....

How does the law look at Managers as exempt employees and the test that talks about the 40% rule? I am the "General Manager" of a small restaurant. The reason I quote the title of GM is becuase for all intents and purposes, one of the owners (the managing partner of our LLP) is refered to as "the man in charge/manager" by our funder.

For example, I remember reading somewhere that the labor department decided that a manager, although doing normal crew tasks (cooking etc) for over 40% does not mean that they fail the exempt employee test since they can concurrently do managerial tasks and direct people.

I am wondering if I should ask my owners to consider changing me to hourly vs salary since a majority of my job consists of doing grunt work and non managerial tasks. Obviously I do not want to make a huge scene about it, and part of my motivation is that we are bringing on an assistant manager who I feel should be hourly due to the nature of what his tasks will be (lots of cooking, cleaning, and prep work).

According to the updated FLSA regulations for exempt employees effective in August, 2004, performance of both exempt and nonexempt duties in the same workweek does not deisqualify an employee from the executive exemption so long as the employee's primary duty meets th test for the executive exemption. You can contact the federal Dept. of Labor to confirm, but in most cases now, a working manager in a retail establishment can still be considered exempt, even if the 40% threshold is reached. As a matter of fact, I think they may even have deleted that test.