Determining the exempt status of a dual-purpose employee

Tony works at a local brewery as its assistant general manager. In that capacity, he interviews, hires, trains, coaches, disciplines, and fires lower-level employees; recommends employees for promotions; meets with lower-level managers to ensure they are meeting expectations; and reviews sales, hours, labor, and overtime reports. To meet the operational needs, however, Tony also picks up regular shifts in the taproom performing hourly, nonexempt work such as waiting tables and bartending. Despite his $75,000 annual salary, Tony estimates that he only spends approximately 20% of his working time performing his managerial duties, while he spends the balance of his time on non-exempt tasks.

Is Tony FLSA exempt or FLSA non-exempt?

According to the 6th Circuit in Manteuffel v. HMS Host Tollroads, an employee such as Tony is exempt despite the fact that he spends 80% of his working time performing non-exempt tasks.

The key issue is whether Tony's "primary duty" is nonexempt work or management. If it's management, then Tony is an exempt executive, employee despite performing non-exempt work 80% or more of his time.

The 6th Circuit relied on the importance of Tony's management duties to the overall operation of the business, his freedom from supervision in how he performed his job duties, the size of his salary as compared to the hourly wage of others, his customary and regular direction of others, and his hiring and firing of others to conclude that Tony was an exempt executive employee under the FLSA.

These are complicated issues that rise and fall on the fact of each specific case. If you have a "management" employee who also regularly performs non-exempt work, check with employment counsel well versed in wage and hour law to ensure, as best as possible, that you've properly classified that worker as "exempt." Otherwise, you risk an expensive and time-consuming FLSA lawsuit.