Banks commonly staff their branch locations with Assistant Branch Managers (or “ABMs”). More often than not, banks pay ABMs a fixed salary regardless of how many hours per week they work, classify them as “exempt” and do not pay the ABMs overtime for the hours they work over 40 in a work week. However, paying ABMs a fixed salary (as opposed to an hourly rate plus overtime pay for all hours worked over 40 in a workweek) often violates Federal labor law.
Under the Fair Labor Standards Act (“FLSA”), banks frequently misclassify the ABM position, typically under the so-called “executive” or “managerial” exemption. To be properly classified as an exempt executive or manager, an ABM must: (1) be paid a salary of at least $455 per week; (2) have the primary duty of actually managing the bank and making executive decisions; (3) regularly direct the work of at least two or more full-time employees; and (4) have the authority and discretion to hire or fire other employees on his/her own or make recommendations on such decisions which have demonstrable weight in the ultimate decision-making process. To be properly compensated as an exempt executive not entitled to overtime, an employee must fully satisfy all of these elements. The vast majority of ABMs usually fail to meet one or more of these elements and thus are improperly classified as exempt and in reality are entitled to overtime for their hours over 40 in a work week.
Most ABMs do not satisfy the “primary duty” element, based upon the facts of their day-to-day duties. Primary duty is often evaluated based upon how an employee spends the overwhelming amount of their working time. As applied to the banking context, rather than truly managing a branch, an ABMs’ “primary duties” often are the same as the non-exempt, hourly employees. That is, ABMs frequently “fill the gaps” in the bank’s operations, spending the majority of their day working on the teller line, balancing cash drawers, completing transactions, opening accounts and generally just helping customers. Thus, ABMs whose primary duties are the same as the non-exempt employees they supposedly supervise may have claims for unpaid overtime wages.
Importantly, the bank’s failure to keep any time records for ABMs will not defeat an overtime claim. Thus, if you are an ABM or in a similar position, and think you have been misclassified, please contact the Shavitz Law Group for a free confidential consultation at 800-616-4000 or email us at [email protected]