Q. We have an hourly worker who oversees both the maintenance and housekeeping departments and supervises two employees. In this job, he has the authority to hire and fire. However, he is also a “working” supervisor who performs maintenance in and around the property. Can his status be changed to salary/exempt?
A. He would be considered anif his “primary duty” is managing the department. To qualify under the executive exemption, an employee must meet all the following criteria:
- The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week.
- The primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent.
- The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
To meet the “primary duty” requirement, the employee’s principal, main, major or most important duty must be managing the housekeeping department. The determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis being the character of the employee’s job as a whole.
Based on your description, it is unclear whether the employee meets the primary-duty test. If he does not meet all four elements of the executive exemption, he must receive overtime pay for hours worked in excess of 40 per week.
- When workers must wear special gear, beware lawsuit if you don't pay for 'donning & doffing'
- Beware misclassifying inside sales staff
- Employee said he would do work free? You must still comply with the FLSA
- Make sure time records can withstand scrutiny
- Feds seek more than $1 million from San Antonio restaurants