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Thread: Salary Laws in West Virginia West Virginia

  1. #1
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    Default Salary Laws in West Virginia West Virginia

    I have a question. My husband is a salaried manager at a restaurant and is scheduled weekly for 57.5-60 hours. He has also lately been required to work an additional 8-10 hour shift on one of his 2 days off. He gets no addtional compensation and has been told these hours are required of him. Is this legal.

  2. #2
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    Probably legal. "Salary" is just a payment method and does not mean much by itself. However you say your husband is a "manager" and that might mean something. There are a group of employees who can legally be treated as Exempt Salaried under the White Collar exceptions. The key word here is "Exempt", not "salaried". Employees who are correctly classified as Exempt Salaried never have an legal expectation of more pay for more pay (that is what "Exempt" means). You might want to take a hard look at the source I referenced. "Manager" can means different things to different people. It could mean a supervisor, or someone with real authority. Or it could mean very little. It is not the title per se that matters but rather the actual job duties.
    "Reality is that which, when you stop believing in it, doesn't go away".
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    Default thank you

    thank you very much for the reply and link it was helpful. I read the ruled according to the website and he does meet the first and third rules but not the second. Meaning I supposed he's not classified as "excempt".
    Last edited by poutyone; 07-25-2008 at 03:36 PM.

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    Could you be a lot more specific? The website I pointed you to a number of different white collar exceptions, and I am very bad at guessing. Which one are you talking about?
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    Default my apologies

    Upon reading the following ...

    Administrative Exemption
    To qualify for the administrative employee exemption, all of the following tests must be met:
    • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
    • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
    • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

    I had concluded that since becoming one of 2 assistant managers in this restaurant he is not only required to run the register and complete all the payroll, deposits, etc. he is also required to go around the restaurant during business hours to seat customers, run the register work the grill, help on the salad bar and after hours he has to mop the floors, clean the bathrooms and of course make sure all the kitchen employees clean up the kitchen correctly. So at first glance at this I thought that surely that would be a no on the second rule making him not an "exempt" salaried employee however upon rereading it yet again I suppose you could say that his "primary" duty is to take care of the paper work and money so perhaps he is in fact exempt although those duties take up a small amount of his day. What is bad about this and what has gotten me upset is that because of the hours they added to his schedule he makes less than minimum wage...so in essence he went from being a kitchen manager making a decent amount an hour to bringing home a little more money but working twice as much. I used to be a salaried employee for a restaurant as a general manager and any time we worked more than 45 hours per week we were allowed "comp time" which meant we could take it off another time when we were covered, not busy etc. This rule seems to me to be very unfair.
    Last edited by poutyone; 07-25-2008 at 04:39 PM.

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    First of all, federal and state DOL care about no one's opinion but their own in such matters, so I will give you my opinion, but do not take it too seriously - DOL will not.

    - Make sure that the Executive exception does not apply. Everyone thinks "Bill Gates" when they hear this, but the main requirement is that 2 other employees are supervised. The employer gets to choose which exception (if any) they want to claim, and any employer who is not an idiot will choose the easiest possible exception to support. This is the easiest, assuming of course that supervision actually occurs. There are a lot of "managers" in the restaurant industry who work 60-70 hours per week for $455/week, more or less legally, because they supervise a few minimum wage workers.
    - IMO (not that DOL cares), the Administrative exception is a hard one to justify given the facts that you have stated. The employer basically has to claim that at least 50% of duties are Exempt in nature (over the course of time, not each and every week). The Administrative exception is much more likely to be used (successfully) in an office environment where you have someone routinely using discretion on matters with big adverse consequences if a mistake is made. For example, Payroll departments (among others) generally report to me. Normally the Payroll Supervisor would be Exempt under the Executive exception, the Payroll Tax Accountant would be Exempt under the Administrative exception, but all other payroll staff would tend to be Non-Exempt. The argument that a payroll clerk making a mistake could be very costly (true) by itself is not enough to make the employee Exempt.

    I have read a certain number of restaurant related DOL Exempt classification decisions over the years and the Executive exception always seems to be the one being claimed.
    Last edited by DAW; 08-06-2008 at 08:32 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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