Food and Beverage Workers: Your Title May Be Misclassified
Your boss congratulated you on being promoted to manager. You were so excited because you know that usually means you’re entitled to perks that other employees do not receive. The only thing is that months have gone by and you aren’t seeing any of the benefits of being a manager. In fact, you’re working more hours for the same pay, or maybe a small increase. You are also not performing the duties of a manager, which has been a complete disappointment.
Many employers misclassify employees’ titles because they don’t want to pay them overtime, but want them to work more hours. It’s a serious labor law violation, so find out what you need to do.
The Labor Law Against Misclassified Workers
Under federal law, the Fair Labor Standards Act (FLSA) clearly provides that employees receive at least the minimum wage, and for all hours worked in excess of 40 hours per week, receive at least one and half times their regular rate of pay.
However, not all employees are eligible to receive overtime pay. There are several instances where an individual may be classified as an exempt employee and may not obtain all of the perks of overtime pay. Often, employees that receive a salary may be exempt (or not entitled to overtime pay). However, under certain exceptions salaried employees may be non-exempt (entitled to overtime pay). For example, generally managers and administrators are normally exempt employees and do not qualify for overtime pay. The manager title is often given to fast food or other restaurant workers in an attempt to deny payment for overtime hours worked. In fact, it is not uncommon for employees holding this title to be misclassified and entitled to payment for overtime worked.
If an employee classifies you as manager or as an assistant manager that does not necessarily mean you are an exempt employee. Courts analyze the duties and responsibilities of the employee to determine if an employee should be treated as exempt or nonexempt. For example, a named assistant manager of a retail business was determined to be nonexempt since she was not able to make any executive decisions and mostly performed routine retail duties throughout the store as directed by the manager. Her daily activities resembled more of an employee than a manager.
What to Do if You Believe Your Title Is Misclassified
To ensure there aren’t any miscommunications, consider the following ways to know if your title has been misclassified.
- Be sure your wage and hour commitments are made very clear to you.
- Review your obligations and keep a copy of them.
- Maintain accurate timecards and records of all the hours you have worked.
- Obtain information from your employer on if you are classified as a nonexempt employee (entitled to overtime) or an exempt employee (not entitled to overtime).
If you are a food server, such as a waiter, waitress, busboy, dishwasher, hostess, host, bartender, cook, food prep, caterer, or other restaurant, bar, or food service industry worker and you believe your employer has misclassified your title and thereby has denied you overtime, work off the clock or has violated your rights in some other way, you need to speak with an experienced and knowledgeable labor and employment lawyer that will avidly fight for your rights.
Misclassified workers can get the help they need. Labor and employment lawyer, John Zidziunas, will hold restaurants, bars, and other food service establishments accountable for violations of federal law against employees, particularly in the areas of unpaid overtime due to misclassification of your title. We will investigate these claims thoroughly to secure the compensation you worked so hard to earn. Call labor and employment lawyer, John Zidziunas today at 973-509-8500.
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