Saturday, Jul. 16, 2005 - 11:02 p.m.

I should be in bed...

I worked at 6am, again. And it was a doozy of a day. We had two call outs, so I was thrust into the whole manual labor thing again. I'm supposed to be doing my "manager" training, now, but as of yet, it hasn't happened. RD left early to go to a friends wedding, so I was left to fend for myself. Tomorrow is another day...

I spent the majority of last night doing search, after Internet search, to find out what I could about Salaried Food Service Manager's meal and rest breaks. I found out that "exempt" Salaried Manager's are not entitled to meal or rest breaks, BUT (and that's a huge BUT) to be considered "exempt" you have to fall under a very specific list of criteria::

When is a Manager not a Manager?
December 16, 2002



Sometimes even Einstein can't figure out the U.S. Department of Labor's wage and hour regulations. At least that's the lesson of the DOL's recent settlement with New World Restaurant Group, the parent company of Einstein Brothers Bagels, which also runs the Noah's, Manhattan, and Chesapeake Bagel chains.

As part of a voluntary agreement, the company started paying hourly wages and paid almost half a million dollars in back overtime to 424 assistant managers in 27 states, including Virginia and Maryland. By some standards, Einstein got off cheap. Starbucks recently paid $18 million for improperly classifying store managers as exempt. Pizza Hut settled two class action lawsuits for a total of $10 million and Taco Bell paid a $9 million settlement to 3,000 managers and assistant managers. In the process, the DOL and the courts have underscored the long-standing position that not all "managers" can be properly exempted from the hourly wage and overtime requirements of the Fair Labor Standards Act.

In fact, the FLSA (The FLSA, administered by the Department of Labor, regulates the wage and hour laws for employers in the public and private sectors. The purpose of the law is to set minimum wage rates, regulate overtime pay, establish record keeping requirements, and enforce child labor standards and penalties.) presumes that all employees must be paid on an hourly basis - including overtime - unless they meet one of three fairly rigid classifications: executive, administrative or professional employees. In order to qualify as exempt from hourly wages and overtime, an employee must meet two criteria: (1) a "salary basis" test and (2) a "duties test."

The salary test is easy to determine. The employee must be paid a recurring predetermined amount of money, regardless of the quality or quantity of work performed.

The source of confusion and controversy in the hospitality field almost always comes in the "duties" test, which concentrates on whether more than 50% of an employee's time is spent performing what the FLSA considers executive or administrative tasks. Common sense would tell you that a "Manager" by definition would meet the test of "managing the enterprise in which the person is employed, or managing a customary recognized department or subdivision of the enterprise." Unfortunately, common sense is not the law.

Instead, to qualify as a manager, one must have duties such as hiring, firing, training, evaluating, and determining pay rates for other employees. Generally speaking, there can be only one "manager" at a time who properly qualifies as exempt, meaning that almost any time there is an "assistant manager" on duty that individual will be considered an hourly employee. Furthermore, to the extent managers on any level pitch in to assist in food preparation, seating duties or even run a cash register, those tasks fall beyond the exemption and if they occupy more than half the employee's time, the exemption is lost and hourly wages are due. Finally, to meet the executive exemption, an employee must also customarily and regularly direct the work of two or more full-time equivalent employees. And the courts have held that only one level of manager can properly direct the employees to meet this requirement, meaning the "assistant manager" is once again beyond the exemption.

Guess what my title is??? Yeah, Assistant Manager...

I don't really care about the overtime, I just want a break or two through out the day. But isn't that a nice little bit of information to have locked up inside this brain of mine??