Night club manager
jmaclaurin
3 Posts
My question is this, if a night club manager is paid weekly but is considered salary and there is a 5th week in the month and doesn't get paid for the 5th week is this legitimate? The night club is in California.
Comments
Off the top, it doesn't sound legitimate. One question...is the weekly salary at least $455 per week?
The correct weekly salary calculation should be annual salary divided by 52 weeks (or possibly 50 if they give 2 weeks unpaid vacation time).....and he/she would get that amount every week. Actually to fulfill the FLSA exemption, he would need to be paid every week in which he/she works at least one day except for very few deductions (first/last week, FMLA timeoff, sick time after using bonafide sick time, personal reasons, etc).
{I suspect that they took annual salary, divided by 12 months and then by 4 weeks (essentially using 48 weeks per year), there would be 4 weeks that didn't get paid....although the total salary for the year would equal the annual salary. However, if their pay schedule is weekly, the company should NOT be doing it this way. But I would try to work it out mathematically to see if that is what they are doing. To correct it would mean that they lower the pay each week to make up for the weeks that are now "unpaid". I suspect they may have calculated it this way to hit the $455 per week mark...but this last paragraph is just my suspiscions!}
Essentially, the question is "have we paid for this week already?" The answer is, probably not.
HRforME is correct in that FLSA stipulates that the salary basis of pay requires (with a few exceptions) that the individual's base salary pay be the same every week. Moreover, it must be the same (with a few exceptions) without regard for hours worked, quantity of work performed, or quality of work performed. If your club manager works the fifth week and you don't pay, you've almost certainly violated FLSA salary basis of pay rules and you've also probably violated your own state's payday law at the same time.
Now, if you've made an arithmatic error and you have been over paying the person using the method HRforME described, or any other incorrect method, the answer may be yes you've paid for the week because you've made the mistake of over paying. If you find that is the case, I would correct the person's pay for the future and have them sign a letter of understanding as to what happened and why so there's a record that the pay change was not disciplinary (or discriminatory) in nature. An employment law attorney may be comfortable drafting something for you that would allow you to not pay for the "fifth week" to normalize the person's pay but, without direct contact with an employment law attorney and without them drafting the letter, and without them telling you it's find and not particularly aggressive, I'd do as above: letter of understanding and adjustment for the future.
There is no such thing, really, as a 5th week in a month, but there are months that have a 5th payday if you pay weekly or a 3rd pay day if you pay bi-weekly. Paying semi-monthly fixes those problems but creates other problems, particularly if you don't use an electronic time/attendance & payroll system. In any case, the base salary pay per week must, with a few exceptions, be the same every week.
Keep in mind that there are three tests for exemption rules. One is that the person must be paid on a salary basis: that's called the salary basis test (imagine that). Another is that the person must be paid enough money, that's called the salary level test. The threshhold is currently $455/week. The last is the duties test which, on average, I would expect someone called a night club manager would meet. However, keep in mind that the duties test is a test of duties, not a test of titles. You can call some grand high poobah in charge of everyone and everything but if they sweep the floors as their primary duty, they wont pass the duty test. If you mess up on any of the three tests, the person is no longer exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act and they can sue for back overtime pay and underpayment if they worked enough hours to go under the minimum wage for what I think is 2 years if it was "an accident" and 3 years if the error was assessed to have been willfull. Willfull violation happens more often than one might think. They don't have to show that you knew the law and chose to disobey it, it can be enough to show that you knew there were laws covering pay and didn't take the steps to know them or ensure compliance with them.