Exempt wants to work a few hours at an hourly job.
Leslie
1,729 Posts
Posted this on wage and hour and got no action....
I have an exempt shift manager who has taken black jack lessons. Now that he's passed his audition, management wants him to deal in a tournament tonight. I told y'all that during special events, exempts volunteer time to help out in other areas - I bartend - we get and are allowed to accept and keep tips. The only way I can think that this exempt employee can deal is by "volunteering" and do it without pay but keep his tips. I think there's all kinds of pits here, but can't see the forest through the trees. HELP!
I have an exempt shift manager who has taken black jack lessons. Now that he's passed his audition, management wants him to deal in a tournament tonight. I told y'all that during special events, exempts volunteer time to help out in other areas - I bartend - we get and are allowed to accept and keep tips. The only way I can think that this exempt employee can deal is by "volunteering" and do it without pay but keep his tips. I think there's all kinds of pits here, but can't see the forest through the trees. HELP!
Comments
An exempt cannot be paid for doing other work, even if it is not their normal work. The tips part is a new twist. If you do it like other businesses who regularly deal with tips, I think you must make an attempt (maybe have the dealer declare them) to account for the amount, stick it in payroll and get the withholding and other payroll taxes handled that way.
If it is your company's event, that's what you should do.
PORK
"Regrding the exempt, salaried managers working extra days, you may pay them, under DOL interpretation of 541.118(b), overtime, even hourly, either as "cash" or as comp time.
DOL's concern is at no time is the salary improperly docked while doing this. Of course, there is an arguable case to be made that in some federal circuits, that approach could result in the mployee being considered as non-exempt.
One way to handle this extra time (more than what the basis salary is intended to cover) would be to base the extra compensation on the fact that an extra day has been work and provide an extra day of salary or comp time (thus there is no counting specific extra hours worked). Another, as others have noted, would make it as a bonus arrangement. But again, technically, under DOL Opinion you could pay the salaried, exempt managers hourly for the extra time (straight, time and a half, or in any manner you want)"
DOL's reference to "any other basis" (below) would seem to allow both volunteering in the sense you describe it, and payment from tips (IRS issues are, of course, different).
". . . additional compensation besides the required minimum weekly salary guarantee may be paid to exempt employees for hours beyond their standard workweek without affecting the salary basis of pay. Thus, extra compensation may be paid for overtime to an exempt employee on any basis. The overtime payment need not be at time and one-half, but may be at straight time, or on any other basis." D.O.L. Wage & Hour Opinion Letter No. 1738(?) (April 6, 1995).
This would perhaps not hold if 1) the person is is being paid for a standard workweek less than 40 hours and less than industry standard, and/or 2) the additional and non-exempt work became a significant portion of the person's total work.
You might want to check with counsel to be certain that this is still the DOL standard, and to check whether there are state regs that might apply.
Regards,
Steve Mac
Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870
My only real questions were does it jeapordize his exempt status, and the answer seems to be no.
Now, my last question is - could he come back at us later and state he should have been paid for these extra hours?
I would suggest something like what Marc indicated, though I would not call it a "waiver" since that implies a right which the person is waiving. It would simply specify everyone's understanding, e.g.: that he is doing this in his role as a shift manager to extend his knowledge of the work, that as a result it involves no additional pay from the employer, and requiring of him whatever is your normal policy with regard to reporting tips.
Regards,
Steve Mac
Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870
However, the full time staff is set, so all that is available is what we call extra-board dealers - dealers with no set schedule who fill in when there's a need. I have a feeling if this shift manager does well, and a full time position becomes available, he will request the transfer. He will not do that, though, untill it's full time.
In the meantime, I will type up the declarance have him sign and go from there.
Thanks all1