Under the Fair Labor Standards Act (FLSA), the exemption for managerial positions depends on various factors, including the salary test, duties test, and the requirement that the alleged manager must supervise two or more full-time employees “customarily” and “regularly.” This blog will focus on the importance of meeting the “customarily and regularly” criterion and its implications for employees classified at exempt managers.
The “customarily and regularly” requirement means that the supervisory duties must be a regular and frequent part of the job, not just occasional or temporary. If, for example, an alleged manager only supervises two or more full-time employees on rare occasions or for brief periods, they might not meet this criterion and thus not qualify for the manager exemption. Importantly, in instances where an employee does not meet the “customarily and regularly” requirement, the employee likely is entitled to overtime for the hours worked over 40 in a work week.
What exactly is ”customary and regular”? Courts have held that if an alleged manager supervises two or more full-time employees 67% of the time, or even as high as 76% of the time, then that is not sufficient frequent for it to be “customary and regular” and the exemption may not apply. Rather, the law indicates that the percentage of time the alleged manager is supervising must be much higher.
Let’s compare two examples to better understand the significance of meeting this requirement:
1. Assistant Manager Smith is classified as an exempt manager; however, Smith only supervises two or more full-time employees twice a year, specifically when the Store Manager goes on vacation. Smith likely would be found to be non-exempt and entitled to overtime because two weeks of supervising two or more full-time employees is not “customary and regular.”
2. Assistant Manager Jones is classified as an exempt manager and supervises two or more full-time employees every week, except when Jones is attending company training out of town. Jones would likely be found exempt (assuming all of the other criteria are met) and not be entitled to overtime because supervising two or more full-time employees all but two weeks out of the year is customary and regular.
The distinction between these examples is critical. Assistant Manager Jones qualifies for the manager exemption because Jones consistently perform supervisory duties regularly (every week), meeting the “customarily and regularly” requirement. On the other hand, Assistant Manager Smith’s supervisory responsibilities are infrequent and limited to a few specific occasions, making Smith likely ineligible for the exemption and therefore entitled to overtime.
If you have questions regarding overtime or your employment, please contact Shavitz Law Group at [email protected].
Compensable drive time refers to the hours that an employee is entitled to be paid for when traveling between work-related locations, while non-compensable drive time generally encompasses regular commuting and personal errands. The distinction is important because if the drive time causes an employee to work over 40 hours in a work week, then the employee is entitled to overtime if the drive-time is compensable. Thus, an employee’s entitlement to overtime depends on the compensability of the travel, which in turn depends on many factors.
Some specific situations deal with the compensability of pre-shift travel, including:
- Employee drives to work in their personal vehicle, load supplies into the company vehicle, and drives to the company worksite:
The time spent loading the company vehicle and driving to the company worksite is compensable, but the drive to the employer’s business is not.
- Employee drives to work in their personal vehicle and drives the company vehicle to the worksite:
The drive to the worksite may or may not be compensable, depending on the employer’s requirements and depends on whether the drive is primarily for the employer’s benefit. The drive to the employer’s business in the personal vehicle is not compensable.
- Employee drives to work in their personal vehicle, loads supplies in the company vehicle, and is a passenger in the company vehicle while the supplies are driven to the worksite:
The passenger’s time travelling to the worksite would be compensable only if found to be an indispensable part of the job and/or the travel time primarily was for the employer’s benefit. The drive to the employer’s business in the personal vehicle is not compensable.
More generally, drive time is compensable when the travel is directly related to the employee’s job responsibilities and is during their regular work hours. Examples of compensable drive time include:
- Worksite-to-Worksite Travel: When an employer requires an employee to travel from one worksite to another during their regular work hours, such as a technician visiting multiple client locations in a single workday.
- Client Visits: If an employee needs to travel to a client’s location for a meeting, service, or delivery as part of their job responsibilities.
- Off-Site Meetings and Training Sessions: When employees are required to attend conferences, training sessions, or other work-related events held at a location other than their usual workplace.
- Special Assignments: If an employee who normally works at one location is temporarily assigned to work at a different location for a specific project or task.
Drive time is generally not compensable where the time employees spend traveling between locations does not directly relate to their job responsibilities. Examples of non-compensable drive time include:
- Regular Commuting Time: The time employees spend traveling between their home and their regular workplace is generally not compensable. This includes their daily commute to and from work.
- Personal Errands During Commute: If an employee chooses to run personal errands during their commute, such as stopping at the grocery store or dropping off their children at school, this time is not compensable.
- Personal Travel Outside of Work Hours: Any travel done by employees for personal reasons outside of their scheduled work hours, even if they are away from their regular workplace, is not considered compensable drive time.
- Commuting Between Home and a Temporary Worksite: If an employee’s regular workplace is temporarily relocated to a different location, the time spent commuting between their home and the temporary worksite is usually not compensable.
If you have questions regarding the compensability of drive time or any other overtime questions, please contact Shavitz Law Group at [email protected].