Too many retail employers take advantage of “Managers”

More and more, courts are holding that retail “Managers” and “Assistant Managers” are not really managers under the law and should be paid overtime.  I wrote a few weeks ago about a $35,000,000 verdict against Family Dollar.  This case is not an isolated one, however, and retail employees and their attorneys need to be aware of their rights. 

In order to be an exempt manager under the FLSA or under the Connecticut Minimum Wage Act, you must have management as your primary duty.  You must also customarily and regularly direct the work of at least two full time people.  Finally, you must actually have input into hiring and firing decisions.

Retail outlets violate these laws when they classify their managers as exempt when they really are nothing more than lead sales persons.  In almost every retail setting, the company and the District Managers are the actual managers of the stores.  The “Store Managers” have almost no discretion in running the store.  They are the lead sales person and they spend a few hours a week performing such banal management tasks as scheduling (which is strictly curtailed) and taking the money to the bank at the end of the day.  Usually, these “Managers” work 50 to 60 hours a week but are only paid for 40.

In 1982, the Second Circuit held that Burger King Assistant Managers were not entitled to overtime, but since then, more and more plaintiffs have broken through and are prevailing.  We should continue to advance these cases until retail chains change their ways.

Too many people without insurance!

Instead of another analysis of a recent case, I thought I’d report about my own experiences lately as an employee rights lawyer.  I get lots of calls from recently terminated employees. Most do not have legal claims that their termination is unlawful.  Most recently have been “laid off” due to this terrible economy.  The most troubling and sad thing they tell me is that they now will have no insurance.  I have recently had a pregnant woman and a man who needs oxygen tanks sit in my office wringing their hands because they just don’t know how they will obtain health care for themselves and their families.  This should not be.  This country, and if not the country, our state, should have universal health coverage that is not lost when you lose your job.  I hope I don’t need to make an argument that this is so.  Access to health care is too important to be dependent on the whims of employers, the economy and wall street.  Our system needs fixing.

Family Dollar Stores to pay $35,000,000 to Store Managers for back overtime!

Store Managers for Family Dollar Stores won a huge victory recently when the Eleventh Circuit Court of Appeals affirmed a judgment in excess of $35,000,000 in their favor for unpaid overtime wages.  Family Dollar Stores has dozens of stores in Connecticut.  Family Dollar Stores had classified their Store Managers as exempt from overtime pay and did not pay them overtime premiums for hours worked in excess of forty in a week.  The Court ruled that these employees were eligible for overtime pay because their primary duties were not managerial.  Instead, “ample evidence supported a finding that the non-managerial tasks not only consumed 90% of a store managers time but were of equal or greater importance to a store’s functioing and success.” 

Although this case was litigated in Alabama, it has repurcussions here in Connecticut because the law at issue, the federal Fair Fabor Standards Act, applies to employee here, too.  Furthermore, the court distinguished a ruling from our Second Circuit in which Burger King Assistant Store Managers lost a similar claim.  The Family Dollar Store Managers were more closely supervised by their District Managers and performed most of their managerial tasks before and after the store opened. 

The take away here for employees and their lawyers is that Store Managers and Assistant Store Managers of retail chains may be entitled to be paid for overtime.  Furthermore, they may be entitled to proceed as a collective action under the FLSA and could win millions!!