If a store manager is hourly not salary and has been working up to 20 unpaid hours per week, should he sue his employer?

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If a store manager is hourly not salary and has been working up to 20 unpaid hours per week, should he sue his employer?

My husband is an hourly employee but is the store manager. The company won’t allow him to be on the clock more than 60 hours per week but also does not provide enough payroll to operate the store. My husband has no choice but to work off the clock to keep the store open. He has documentation of all his unpaid hours – typically around 20 additional hours a week. That’s right – he works 70-80 hours a week just to keep the store operating but only being paid for 60. They are killing him with these “slave wages” and I think this is highly illegal. Should we get a lawyer and sue his employer?

Asked on August 10, 2011 Indiana

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Whether or not you need to be paid for any hours worked over 40 depends on whether your husband is considered to be an "exempt" or "non-exempt" employee. If he is an exempt employee, there is no upper limit on how many hours he can be asked to work. Typically, salaried employees are considered to be exempt from certain labor laws and hourly are not, although this is not automatically the case. Whether an employee is paid on a "salary basis" doesn't depend on whether their pay is expressed in terms of an hourly rate, but on whether they have some "guaranteed minimum" amount of pay they can count on each week. So if an employee is paid only for the hours they actually work each week, with no "guaranteed minimum" (e.g. if you work 37 hours, you get paid for 37 hours), the "salary basis" requirement is not met.

Additionally, while being paid on a salary basis is part of the test for most forms of exemption, it's not the only element. It is possible to be salaried and to get overtime. Basically, exempt employees are: Management (the employee supervises other people in their work); Professionals (the job requires advanced or technical training - think engineers, accountants, lawyers, etc); Administrators (if the employee exercises considerable discretion in their job duties). If an employee is non-exempt then all work time is paid time and for any hours that are worked over 40 per week must be paid as overtime. 

From the limited facts given, however, it appears that your husband may be a non-exempt employee and therefore not subject to overtime laws. In other words, if he has no union/employment contract protecting him from having to working these hours, or such scheduling violates company policy, or he is being made to work this much as some form of actionable discrimination, his only alternative as an "at will"  worker is to change jobs.

What you should do now is to consult with an employment law attorney or at least contact your state's department of labor. Either one can more fully discuss the specifics of his situation with him.


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