FEDERAL WAGE UNIT ENFORCES OFT-IGNORED LAW ABOUT OVERTIME : ON THE JOB.

Byline: Susana Barciela Knight-Ridder Tribune News Wire

To Zaira Guerrero, the job sounded like a first step in a fast management track. Recruited out of college, she began as an associate manager at Home Depot in Miami. In theory, she was in training. In practice, she worked 70-hour weeks for a fixed annual salary of $24,000.

``I was in training a year and a half. I had the manager title,'' she says. ``Overall, I was doing regular employee work: helping customers on the floor, stocking shelves, even being a cashier when they needed one.''

It wasn't until Guerrero left in 1994 that she questioned whether the company owed her overtime pay. Potentially, millions of Americans should be asking, too.

``There is a need for more awareness,'' says Guerrero, now a first-year law student. ``Employees don't know their rights, and they are being abused.''

She has a point.

The 1938 Fair Labor Standards Act established a minimum wage and mandated overtime pay.

Today, it's perhaps the single law most violated by employers. No one knows exactly by how much, but it's a lot.

The U.S. Labor Department figures that two-thirds of the nation's workers, roughly 70 million, are eligible for overtime pay. Over the past five years, the division has recovered about $500 million in overtime pay for roughly 1 million workers, notes Maria Echaveste, administrator of the department's Wage and Hour Division.

That doesn't even count employees who have sued or settled overtime claims privately.

Under the law, employers must pay covered workers 1-1/2 times their regular hourly rate for overtime work, which is defined as anything more than 40 hours in your established workweek.

``People often don't know that their rights are being violated or are afraid to complain,'' says Jonathan Kroner, a Miami lawyer who often represents employees.

You can put a secretary on salary and call him an office manager. But if his work remains mostly clerical, he remains entitled to overtime pay. ``The title doesn't make a difference,'' Kroner says. ``It's what they do.''

Jobs classified as executive, administrative or professional because of their content, for example, are the most common exemptions.

Guerrero, for instance, could have been considered exempt from the OT rules, had she managed people, hired and fired and used discretion in performing her job. However, she was assigned tasks and scheduled for work along with hourly workers.

After Guerrero filed a complaint, the Wage and Hour Division investigated Home Depot's associate manager program nationwide. That, too, serves as a cautionary tale.

It took more than two years to reach a settlement, which entitled Guerrero to $4,205.55 - a fraction of what she figured her overtime pay would have been worth.

By then, the two-year statute of limitations had run out. So Guerrero no longer had the option of suing.

Home Depot says it worked closely with the Wage and Hour Division to answer their concerns. The company now makes sure that associate managers don't work more than 40 hours a week, says a company lawyer in Atlanta.

Echaveste would not comment on the Home Depot case because it's not closed yet. Generally, though, she says, ``This issue of who is exempt from overtime is one that managers often confuse.''

Some employees don't wait to sue.

A lawsuit filed last month in Miami alleges that Albertson's, a national grocery chain, owes employees overtime pay. ``People are given an incredible amount of work to perform in their work hours and are unable to perform it in that time,'' says Howard Suskind, the Coral Gables, Fla., lawyer representing the nine plaintiffs.

Employees end up working ``off-the-clock,'' the suit claims, a practice common at the store level though it is strictly forbidden by company policy.

Backed by the United Food and Commercial Workers Union, the suit seeks to represent workers at all 89 Albertson's stores in Florida. It's similar to lawsuits filed against Albertson's in California and Washington state.

``We always pay in full for any and all time worked,'' says Michael Read, a spokesman for Albertson's in Boise, Idaho. ``Had the employees come forward and let us investigate their claims, they would have been resolved a long time ago.''

Food Lion, another retail food chain, agreed in 1993 to pay $11 million to settle overtime cases involving 21,607 people.

What can a worker do? First, learn your rights. Call or visit the nearest Wage and Hour Division office and ask for pamphlets. ``If you think your are being cheated, just keep a daily record of your hours,'' Echaveste says.

You can always talk to management. Or file a complaint with the Wage and Hour Division, which can keep your name confidential and enforce the law's anti-retaliation provisions. Remember, though, the division's often swamped.

Another option: Sue directly, though it may be tough to find a lawyer. Remind them that the law allows you to sue not only for overtime pay, but for damages and attorney's fees.