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Working leads and foremen may be entitled to overtime even if paid a salary.

Many employers, especially those in the construction or oil and gas business, employ foremen (sometimes also called "leads" or "project managers"). These employees work alongside a rotating crew of hourly workers but also have some managerial responsibilities for the crew. The foreman might assign specific tasks to workers, communicate with the customer, and be responsible for the safety of the workers. Often, foremen are classified as "exempt" from the FLSA's overtime requirements; and, as a result, they are almost always paid a salary, with no overtime.

There are numerous "exemptions" from the FLSA's overtime requirement; the one most often at issue with foremen is the "executive" exemption. To meet that exemption (and not be entitled any overtime), the foreman must meet each of the following tests:

  1. The employee must be compensated on a salary basis at a rate not less than $455 per week;
  2. The employee's primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise;
  3. The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  4. The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Each of these elements could invalidate the foremen's exemption and require that he or she be paid overtime. For example, employers often pay these foremen a day rate for all hours worked in that day or sometimes even pay foremen by the hour. Either scenario violates the first element and makes the foreman eligible for overtime compensation.

The second element is also often violated. When these foremen work alongside their crew and perform the same manual tasks, they can lose the exemption. On this point, it is a matter of degree. A foreman can perform some of the same tasks as an hourly worker without being entitled to overtime if those tasks are a minimal part of the job. But as the percentage of non-managerial and manual work rises, the employee's "primary duty" shifts from "management" to worker. If the foreman spends more of his time doing the non-management work than managing the workers, there is a good chance he is entitled to overtime.

The third and fourth elements are fairly straightforward-the foreman must "direct the work of at least two or more full-time employees" and have hire/fire authority or their recommendations as to hiring and firing must be given particular weight. But working foremen rarely actually "direct the work of" two or more folks, and they are often merely the lead employee in a crew and have no input as to the hiring or firing of employees, much less have their recommendations given "particular weight." When that is the case, the foreman is entitled to overtime compensation for hours worked over 40 in a week.

If you are one of these foremen and do not meet the above elements, you may be entitled to overtime from your employer.  Contact the Moreland Law Firm online or call 512-782-2293 for a free consultation.

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