Salary/ North Dakota

[jmcmanna]

I'm writing on the behalf of a friend here . . . She was hired as a "salary employee" at $25,000 per year at a new home improvement store in town. The store is not open yet, so she works 11 hours/day 6 days/week for a total of 66 hours per week unloading trucks, stocking shelves, etc . . . All of the salary and hourly employees are doing the same thing and have been for the last several weeks, but the hourly employees are sent home early to limit their weekly hours to 40.
Her regular pay comes out to $440 per week, and she is paid $15 of "overtime" per week, which works out to $455 per week.
Even though she may or may not be eligible for exempt status once the store opens in 4 to 5 weeks, could she be considered exempt (and denied overtime)for the 2-3 month period where she is performing manual labor not consistent with what she was hired for once the store is open?

Also, she was sent for training several weeks ago in another store 70 miles away for 10 days, and the company agreed to reimburse her for $.35/mile each way every day for those 10 days (they refused to pay for a hotel for the time). This works out to several hundred dollars, but she hasn't been paid for it yet, although a few pay periods have passed since then. How long can they sit on it before they have to pay for that?

[LConnell]

It can be problematic if she is doing non-exempt work, even if it is only for two to three months. My question is how much supervision she is performing while doing that work. For example, in a retail store, the supervisor on duty may be required to do manual work. However, she/he is simultaneously supervising employees, etc. This may cause the person to be exempt from overtime. Information about the "executive exemption" may be found at: http://www.dol.gov/esa/regs/complian..._executive.htm As may be seen, she must make at least $455 per week in order to be considered as "exempt".

There is no requirement that employers reimburse employees for mileage. As such, there is no timelimit prescribed as to when the mileage must be paid. The only exception might be where there is a written policy or agreement specifying payment in a certain amount of time.

Let me know if you have any other questions.

[jmcmanna]

Thanks for the quick response!

She signed an agreement saying that she would be reimbursed for mileage, but I guess there was no date attached to it as to when it would be fulfilled.

For the main point, she is not supervising anybody right now, and won't be at all for the 2-3 month period in preparing to open the store. All of the current employees are working under the supervision of the store manager, operations officer, and outside contractors. Since she will be an assistant manager to her department, she was placed on salary, even though selling will be her main job. I looked over the DOL information, but I guess I still can't make a determination myself about it during this 3 month period, which really is the only time in question. The amount of overtime in question, though, is huge, which is why there is an issue.

Do you have any suggestions about how we could find out specifically in her case if she is exempt or not?

Thanks in advance,

Jim

[LConnell]

Retail employees who are paid on commission may be exempt from overtime if at least 50% of their pay comes from commissions AND their average rate of pay is at least one and half times the minimum wage. Since the store is not open yet, I assume that they are not making commissions. For that reason, your wife may be owed overtime. You can consult with the Department of Labor, asking them quesitons about the Fair Labor Standards Act and how it applies to your wife's exemption under the law. (The number by which to contact the DOL is at the website I provided to you in the earlier post.)

Let me know how it goes and if you have any other questions.