If your company maintains more than one location, such as multiple retail store locations, chances are you maintain a manager or store supervisor that oversees each location's operations. In tough times like now, many retailers staff very conservatively. A supervisor may be one of two employees staffing a retail store. While the supervisor may direct and control 1 or 2 other employees, she may also perform the same/similar duties as her subordinates, such as ringing up customers at a cash register.
The federal Fair Labor Standards Act (FLSA) determines whether a supervisor is exempt from overtime and is not based on what title the company uses or if the person is salaried. Whether or not an employee is exempt from overtime depends on that individual's job duties and the proper application of FLSA regulations.
A store manager at one location may be exempt from overtime, while a manager at another may not. The difference is sometimes subtle and difficult to understand under the FLSA. The question arises when when managers perform many non-managerial tasks: can they be exempt from overtime?
Store managers generally are not exempt from overtime where they do not customarily and regularly direct the work of two or more other full-time employees or the equivalent. Whether a manager's primary duty is "management" under the FLSA is based on all the particular facts and circumstances. Recent cases under the latest FLSA regulations, define "primary duty" as the principal, main, major or most important duty that the employee performs. The determination must be made with a view toward the character of the employee's job as a whole. So, an employee performing some nonexempt work can still be exempt if her primary duty is managerial in nature.
With the increase in wage and hour class-action suits, you should be very careful when making a determination on the exempt status of management personnel. Your policies and procedures will help define the scope of duties and managerial responsibilities, but remember, the FLSA governs.