Assistant Manager Title but Doing Hourly Work: Are You Really Exempt From Overtime?

Title Does Not Decide It

29 CFR 541.2 says a job title alone is insufficient to establish exempt status. Whether you are exempt depends on your salary and your actual duties. An employer cannot avoid overtime simply by calling a role "manager."

What the Executive Exemption Requires

Under 29 CFR 541.100, an employee generally has to meet all of these tests to be exempt as an executive:

• Paid on a salary basis

  You must be paid a predetermined salary of at least $684 per week, not an hourly rate. Some states set a higher minimum.

• Management is your primary duty

  Your main duty must be managing the business or a department or subdivision of it, such as scheduling, directing work, training, evaluating staff and handling complaints.

• You direct two or more other employees

  You must customarily and regularly direct the work of at least two other full-time employees or the equivalent, such as four half-time workers.

• Real say over hiring and firing

  You must have authority to hire or fire, or your recommendations about hiring, firing, promotions or other changes in status must be given particular weight.

If even one of these is missing, the executive exemption does not apply, and you are generally owed overtime at one and a half times your regular rate for hours over 40 in a workweek, unless another exemption fits.

What "Primary Duty" Means

29 CFR 541.700 defines primary duty as the principal, main, major or most important duty you perform. It looks at the whole job, including the relative importance of management compared with other work, the amount of time spent on each, how free you are from direct supervision, and how your salary compares with what non-exempt employees doing similar work are paid. Spending more than 50 percent of your time on management generally satisfies the test, but time is not the only factor and it is not an absolute rule. A manager who spends most of the day on the floor can still be exempt if management is truly the most important part of the role.

Working the Floor and Concurrent Duties

29 CFR 541.106 recognizes that a real manager can do non-exempt tasks at the same time as supervising, for example an assistant manager in a store who runs a register while also directing employees and handling problems. The question is what your job is in practice. Warning signs that the exemption may not fit include:

• You do the same work as hourly staff

  Most of your shift is the same tasks as the people you are said to manage.

• A higher manager makes the decisions

  Scheduling, discipline, hiring and pay decisions are made by someone else, and you only pass them along.

• Little or no staff to direct

  You are the only worker on some shifts, or you direct fewer than two full-time employees.

• Heavy supervision

  You must follow detailed checklists and get approval for routine decisions.

• Pay barely above hourly staff

  Your salary, divided by the hours you actually work, is close to or below what the people you supervise earn.

A Simple Example

Say you are an assistant manager paid a salary of $900 a week who works 55 hours. If you are properly exempt, there is no overtime. If you are not, your regular rate is generally the salary divided by the hours the salary was meant to cover. If the salary was meant to cover all hours worked, that is $900 divided by 55, or about $16.36 an hour, and the 15 hours over 40 are owed at half that rate again, about $8.18 an hour extra, or roughly $122.73 each week. If the salary was meant to cover only 40 hours, the regular rate is $22.50 and the overtime is higher. The right method depends on your agreement and your state. Over a year, the gap can add up to thousands of dollars.

What to Write Down

• Typical shift

  Keep a record of your actual hours and what you did each day, in the same way you would for <a href="/blogs/employer-has-no-time-records-or-refuses-pay-records-flsa-recordkeeping-and-proof-of-hours" class="text-primary underline">proving hours without time records</a>.

• Share of time on each task

  Estimate how much of a normal week goes to supervising versus hourly-type work.

• Who you supervise

  List the employees who report to you, their schedules and whether they work full time.

• Decision authority

  Note who really decides hiring, firing, discipline, schedules and raises, and keep texts or emails that show it.

• Job description and pay records

  Save the posted job description, offer letter and pay stubs, and compare them with what you actually do.

Related Pay Problems

A salary is also not enough on its own. If pay is docked for partial days or the amount varies, see our guide on salaried employees and exempt status. For how overtime is figured, read our overtime pay guide. If you were also kept working before clocking in or after closing, see off-the-clock work.

Time Limits

The FLSA generally allows 2 years to bring an overtime claim, or 3 years for willful violations, and state law may allow more. Asking about overtime is protected, and retaliation for a wage complaint is illegal.

Free Case Review

Whether the manager exemption applies depends on your duties, your pay and your state. Our team can review your situation at no cost, if you are eligible.