How do know if my position is truly salary and/or FLSA exempt?

UPDATED: Oct 2, 2022

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How do know if my position is truly salary and/or FLSA exempt?

I work at a restaurant as a server/front of house supervisor. So I serve tables and make tips until Im cut off the floor. The order of when servers will be cut is decided by the General Manager when she makes the schedule, but I am the person who decides when servers are cut according to business on that particular day. I also do all the managerial duties for that day while and after I’m done serving. I cash and check out all servers, I count the drawer, I do all voids, I handle customer complaints, and I do all the closing paperwork at the end of the day. It can be quite the task on a busy day and can even cost me tips if I can’t spend the time needed with my tables or if I need to stop taking tables because the expo window is full or the credit card machines go down. I received my offer letter for the position back in January, the terms stating my base salary would be $12,500, that compensation is earned and paid bi-weekly, and that managers are expected to work 45 hours per week. At this point, my pay rate on each bi-weekly check was $480.77, I was also receiving $50 on each check for gas because I was a traveling Supervisor and they could shuffle me between the 6 stores as they pleased. And finally I was getting my tips as well. The owner had mentioned once that he was thinking about lowering what he paid the foh supervisors because he wanted to do more of a bonus structure so we would be more invested to do a good job. This was the only time he mentioned this, but I remember thinking that most of that gets ate up in taxes and overall the position isnt really worth it for all that is expected of us. I continued to do it because I really liked my GM but I knew if he lowered our pay that I definitely wouldn’t continue. Well about a month and a half ago he apparently decided he did want to pay us less and that we wouldn’t mind. Without any notice or asking if I would be willing to continue with the position for less compensation, he lowered my pay making it $403.85 on each check and lowered my gas allowance to $25. We get cash at the end of each day for our tips, so I didn’t even notice for a while because my checks fluctuate quite a bit. The whole situation makes me angry and I’m looking to see if any of what he is doing is illegal or if I have any rights to addition pay?

Asked on October 26, 2019 under Employment Labor Law, Indiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) You are salaried if paid the same amount every pay period, regardless of hours worked. Any position can be salaried, at any level or amount of pay. The only limitation is that the amount you earn per week, when divided by full time hours (e.g. 40), must at least equal minimum wage, since regardless of whether you are paid salareid or hourly. If you get tips, that can reduce the minimum you must be paid, but tipped positions tend to almost always be hourly.
2) However, being salaried does not necessarily make you overtime exempt: salaried workers can receive overtime (extra pay for hours worked over 40 per week). To be exempt from overtime, you must
a) Earn at least $455/week in salary--which you do not. And in addition to this,
b) Your job duties, resposibilities, and authority must meet at least one of the "exemptions" from overtime, which can be found on the U.S. Dept. of Labor website, such as the "executive" exemption (which should be called the "managerial" exemption, since it applies to non-executive mangers). Compare those exemptions to your job.
As stated, you appear to earn too little to be overtime exampt, which means you should be getting extra pay when you work more than 40 hours per week. You may wish to file a complaint with your state or the federal dept. of labor.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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