What duties constitute an

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What duties constitute an

My spouse was hired as an operations manager to oversee a staff of 5. All staff have been let go and my spouse now performs the administration, the physical labor, equipment moving by truck/trailer and mechanic work – himself. He had an asset manager previously to do these things, as well as office staff, and his responsibility was admin work – hire, fire, manage – operations. He works 60 hours Monday through Friday and is gone 3 weekends per month, working 15 hours days on the weekends. He can’t take time off after the weekend due to catch up from the travel. His employer still classifies him

Asked on August 25, 2016 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Performing manual labor does not make one non-exempt: a CEO or president of a small business could, for example, help load trucks and process orders and would still be exempt. However, to be an "executive" (an exempt manager), his *primary* duty must be managment--that is, the main or most important thing he does must be managerial. Furthermore, he *must* manage at least two other full-time employees or their equivalents (e.g. two full time workers, one full time and two part time, etc.); and he *must* have real (as opposed to theoretical) power to hire and fire (if it's claimed he can hire staff, but he's never allowed to, then he doesn't really have that power).
Based on what you write, it's probably not that his primary duty is management; it's most likely not that he can hire other employees, if the company isn't letting him do any hiring; and he certainly is not managing 2 other employees if all his staff was let go and he does everything personally. He does not appear to be exempt, and he may wish to contact the department of labor to discuss an overtime claim, since he may be entitled to (based on what you write) up to 20 hours of back overtime per week for the shorter of the last 2 years or as long as this has been going on.


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