Assuming you still have questions about whether your employee is exempt, let’s discuss the problems inherent to self-storage:
1. Some days are just very busy, for example, the day rents get posted, particularly if they all come due on the first of the month. Many managers may work more than 40 hours during the week rent is posted, and you cannot give compensatory off time in another week to make up for the excess hours of a previous week. The make-up time must be within the same week or the employee is entitled to overtime.
2. Office hours for self-storage facilities almost always exceed 40 hours per week. This is problematic if you’re running the facility with one manager or a manager and a relief employee.
3. Managers are often expected to field phone calls after office hours. Any form of work is considered time calculatable toward overtime. If the office phones forward to a manager’s phone after office hours, those calls are subject to overtime if the employee is not exempt.
4. Onsite managers may be expected to perform additional services after office hours. For example, they may be required to walk the property, open or close the manual gate, assist customers who experience trouble with the gate, and perform facility maintenance. If your manager is not exempt, all of these duties are subject to an overtime claim.
5. In self-storage, couples often work together. The “manager” may work 40 hours in a week, but his or her spouse may work an additional 20 or 30 hours to assist with phones, sweeping out units or any number of tasks. If the spouse is assisting outside his or her regular work hours, that person is on duty and wracking up overtime.
Recording Hours Worked
One of the biggest problems is facility owners do not keep track of employees’ work hours because they believe their managers are exempt or that each manager is really only working 40 hours per week. If the relationship between the manager and the business ends, a disgruntled manager may go back to owner with a record of all the hours he worked, and the owner will be hard-pressed to prove differently.
As a matter of fact, some owners have probably encouraged employees to turn in time sheets that do not show overtime, even if they believe their managers to be exempt, because they think time sheets will protect them from a wage an hour claim later. Unfortunately, this isn’t true, and it has been the subject of multiple class-action lawsuits.
Let’s face it: A manager who is no longer enthralled with his position or who has been discharged can make a wage and hour claim, insisting he worked all kinds of extra hours for any number of reasons. If you have no record of whether this additional work was actually performed, you will be at the mercy of the employee’s estimates or records. As the employer, you are required to maintain accurate records of all hours worked by your non-exempt employees.
The look-back period for a wage and hour claim is two or three years, depending on whether the violation is willful. If the employee’s case proceeds successfully, you’re looking at repayment of the wages at the rate of time and a half, plus penalties, interest and attorney’s fees.
The good news is your employee may be exempt, or you may be able to create a job category to make him exempt going forward. Consult with a local attorney who knows wage and hour law to ensure you’re handling the matter correctly. If you determine your employee is not exempt and wish to fix the situation, you can reach a settlement with the employee with a release of claim for wage and hour violations. This will prevent the possibility of future claims should you and the employee become “disenchanted” with one another.
Essentially, you can buy yourself a release of that claim now for probably a substantially lower sum simply because you and the employee did not understand that he was not exempt. You want to address and fix this problem as quickly as possible to stop the clock running on the look-back period. You also want to resolve the situation in a manner that is fair to you and your employees and avoid the risk of an expensive claim down the road.
As always, and certainly in a wage and hour situation, the best place to start is with your local attorney. Review job descriptions, job requirements, job duties, performance hours and other tasks the employee may be expected to perform to determine if you have risk or exposure to risk. If you are at risk, work with your attorney to refine job characteristics and responsibilities, attempting to make the employee exempt. If that is not possible, resolve the claim with the employee and begin paying overtime wages when overtime hours are worked.
This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney.
Jeffrey J. Greenberger is a partner with the law firm of Katz Greenberger & Norton LLP in Cincinnati and is licensed to practice in Kentucky and Ohio. Mr. Greenberger primarily represents the owners and operators of commercial real estate, including self-storage owners and operators. To reach him, call 513.721.5151; e-mail firstname.lastname@example.org ; visit www.selfstoragelegal.com .