To qualify for the executive employee exemption, all of the following tests must be met:

• You must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
• Your primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
• You must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
• You must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

The supervision of other employees must be a regular, normal part of the job, and must be of two or more full-time employees (or enough part-timers to be the equivalent of two full-time employees). In addition, you must be “in charge” of a unit or subunit of the organization, such as a “department” or a “shift.” This means that you are, as a practical matter, “the boss” of the unit or subunit when on duty.

Generally, only one person is in charge of a unit or subunit at any particular time. Thus, if an “assistant manager” is never on duty alone, but a “manager” is always on duty at the same time, then only the “manager” is in charge and the “assistant manager” is not. For this reason, a number of assistant managers are not exempt employees and should be paid for the overtime they work.

If you feel that you have been misclassified as an exempt executive employee and would like to discuss the matter with an attorney, please contact us or fill out our online consultation form and we will call you.