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Assistant Managers at Safeway recover overtime pay due to more than half the work involving physical labor

Linda Heyen was a former assistant manager for Safeway. She brought this lawsuit in Los Angeles County Superior Court  (Heyen vs. Safeway, 2013 DJDAR 6622) to recover unpaid overtime, and successfully contended in front of the jury that she was a “nonexempt” employee because she spent the majority of her time (more than 50%) doing nonexempt work such as grocery gagging and checking. Safeway attempted to argue that federal law applied, and that she should have been exempt from overtime for all hours during which she simultaneously performed exempt and nonexempt duties. The basic point of the argument was that simultaneous managerial duties (such as observing other checkers from the vantage point of the check stand when the assistant manager was working at), made the observation exempt activity.

The appellate court gave short shrift to this argument and upheld the trial court’s jury instructions. The jury was asked to determine how the employee actually spent his or her time, and to also consider whether what the employee was actually doing was consistent with the employer’s realistic expectations. Further, that if the employee is doing both exempt and non-exempt work, the jury must consider that time to be either an exempt or non exempt activity depending on the primary purpose for which the employee undertook to perform at that time.

Complicating Safeway’s defense was that at least one witness testified that if not enough food clerks are available, salaried management must jump in and help out customers. A superior told the witness that he had to be at the check sand over half the time to meet the budget and he followed that order. Anytime there was 3 or more customers in line, another cashier had to be called, and that was usually the management. the court noted that the plaintiff had to spend time manning the customer service booth, cashing checks, issuing money orders and selling cigarettes and lottery tickets. All of this while performing non exempt bookkeeping duties.

The court looked to a 1993 opinion letter written by the California Division of Labor Standards Enforcement. “one may not be ‘engaged in’ activities which are, for instance, managerial as required by the Industrial Welfare Commission (IWC) Orders, while at the time time doing something else for it would be impossible to involve oneself or become occupied with managerial work while performing other duties. In other words, the IWC Orders require us to ascertain the type of work the individual is actually doing (eg, ‘managerial’ or ‘production or ‘sales’ and count the time on either side of the ledger. …In order to count as exempt, the employee must ‘clearly’ disengage from the non-exempt activity and engage in the exempt activity. The court lists a number of activities which would be, if the primary purpose of the work, exempt, such as interviewing, selecting, training employees; setting and adjust pay and hours; directing their work; maintaining their production or sales records for use in supervision or control,; appraising their productivity; handling their complaints and discipline; apportioning the work among the workers, determining the materials, supplies machinery or tools to be used; controlling the distribution of material or merchandise; providing for the safety of the crew.

This excellent opinion concludes by revisiting the “reasonable expectations” of the employer. Here, Safeway was confirmed by witnesses that the store had “unrealistic” expectations regarding the stores’ operating ratios, and that a manager could not keep checkout lines as short as company policy dictated without doing significant nonexempt work themselves. Other witnesses testified that Safeway budgeted too few hours for the nonexempt bookkeepers to to the books and thus assistant managers heeded to take over this work.  Thus, the court concluded that Safeway’s realistic expectation was that the employee would in fact do significant nonexempt work.

Learning lesson for our future client/employees: If you have a management title, such as “assistant manager”, determine by keeping a regular log, how much of your time is spent in “hourly” type work, such as cashiering, catering to customers directly, running errands, etc. The courts of California continue to determine whether overtime is due for this type of work based on the “primary” purpose of that particular job.  We represent California employees in class action and individual wage and hour matters and would be pleased to discuss your case with you at no cost or obligation. This blog should be considered educational, not legal advise.  Steve