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Incompetence can’t turn manager into hourly

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in Firing,Human Resources,Overtime Labor Laws

Not every promotion works out. Sometimes an employee pro­­moted to management just isn’t ready for new responsibilities. Maybe she’s having a hard time thinking like an exempt employee, longing for the days when she was entitled to breaks and overtime.

Fortunately, if you discipline such employees for neglecting their duties, they can’t later claim they actually were hourly employees entitled to overtime and other rights accorded nonexempt workers.

Recent case: Alexa Romero worked as an hourly sales clerk at a clothing store chain. She also earned commissions on her individual sales.

Eventually, Romero was promoted to assistant manager. Her status then changed from hourly to exempt and she was given a long list of man­agement tasks to perform. Those in­cluded scheduling, opening and closing the store, managing the day’s receipts and making sure the store looked in good order. She also started receiving a set salary.

Romero didn’t like the management commission plan, which was based on store sales, and demanded to retain her previous commission plan. The employer agreed. It also agreed that Romero could work just 35 hours and would get Saturdays off.

All that still didn’t make Romero happy. She was frequently written up for leaving cash in the register, not helping salespeople, failing to put clothing on racks and many other problems. Romero was de­­moted and eventually lost her job.

She sued, alleging that she had really never been exempt because she hadn’t performed managerial tasks and should therefore have been paid for lunch breaks she didn’t take, plus overtime.

The court disagreed. Perhaps she didn’t do her job, but that wasn’t her employer’s doing. She was supposed to be a manager and was penalized for not managing. (Romero v. Leon Max, No. B226820, Court of Appeal of California, Second Appellate District, 2012)

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