When is a lifeguard an 'exempt' employee?

Carrie Mason-Draffen

12:55 PM EST, February 8, 2008

From time to time, Help Wanted focuses on a single topic. Today's topic is exemptions from overtime.

DEAR CARRIE: We employ a lifeguard supervisor who is in charge of four other lifeguards during the winter and at least eight or more during the summer.

This is a large condominium community of 1,022 homes, and we have indoor and outdoor pools. The lifeguard in charge also has quite a lot of responsibility for maintaining the pool and equipment. I need to know whether he is an exempt or nonexempt employee. During the summer he puts in a great deal of overtime, particularly during the holidays. In addition, he is on call anytime the pool is open, in the event of an emergency. That could amount to a great deal of overtime.

To Exempt or Not

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DEAR TO EXEMPT: Thanks for your question. I wish more employers would seek clarification before making decisions that could produce a resentful employee or a labor law violation, or both.

The answer depends on whether the lifeguard's duties legally put him in the management category and thus make him exempt from earning overtime. Your question involves the management, or executive, exemption as opposed to the other exemption categories: the professional, administrative and outside-sales classifications.

To be considered a manager, according to U.S. Labor Department regulations, the lifeguard's duties must meet four key tests: He must earn at least $455 a week; his primary duties must involve managing; he must "customarily and regularly" direct the work of at least two or more full-time employees or the equivalent, and he must have the authority to hire or fire, or his recommendations "must be given particular weight."

To be exempt from overtime he must also be paid a salary. The minute you start paying him by the hour and docking his pay if he's late, you can no longer consider him an exempt employee.

For more information look for the Labor Department's Fact Sheet #17B at dol.gov. I would also call the Labor Department at 516-338-1890 or 212-264-8185.

DEAR CARRIE: I worked in an office that paid salaries as opposed to hourly wages. It seems that because we were salaried, the company considered us ineligible for overtime. Some of the people did fit the criteria for supervisor, and I could understand why they didn't earn overtime. But my work was relatively rote, and I didn't supervise anyone. Can a worker be nonexempt and ineligible for overtime?

Status Query

DEAR STATUS: Nonexempt employees can be salaried or hourly. What's more important is that they have to be paid at least the minimum wage and paid overtime whenever they work more than 40 hours in a work week. Under federal laws, the overtime would be computed on the hourly rate their salary breaks down to. This kind of confusion is common, according to the Westbury office of the U.S. Labor Department.

Exempt employees, by contrast, must be salaried, one of several criteria used to determine their status.

It doesn't sound as if you're a manager and exempt from overtime, because you don't supervise anyone; so most of your job couldn't consist of managing. As mentioned above, those are two key criteria for determining if you're a manager. For more information call the Labor Department at the number above.