In a recent posting in the Connecticut Employment Law blog, http://www.ctemploymentlawblog.com/2009/12/articles/wage-and-hour/a-dollar-here-35-mi Steve Lavelle wrote about a recent case in involving the exemption status of Store Managers for Family Dollar Stores. The evidence showed that the employees rarely, if ever, discharged managerial duties and spent the vast amount of their time in performing duties identical to subordinates and thus their classification as exempt from overtime was erroneous. He warns that the employer must always be be vigilant about properly classifying employees as exempt or non-exempt.
I have often advised clients that, sometimes, it is safer to treat titles such as Assistant Manager as non-exempt, from the outset. Pay them hourly and time and one-half OT, but compute, or "back into" the proper hourly rate by determining the number of hours that will be routinely worked (e.g. 45, 50) in given weeks. In such a manner, the exempt/non-exempt issue never becomes an issue.
The other option for employers is to enhance the actual job duties of these and similarly titled employees so that they do, insofar as possible, exercise managerial functions (e.g. hiring, firing, input into raise/promotions). This is harder to do, takes significant managerial oversight and must be monitored. It can be done, however, and then the person or persons will truly be exempt, whether under the Fair Labor Standards Act or any state wage-hour law.