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.