HR Support on Exempt and Non-Exempt Employee Classification

Editor's Note: One of the trickiest compliance challenges for HR.

Michael CardmanOverview: The Fair Labor Standards Act (FLSA) was written in 1938, at a time when manufacturing and agriculture dominated the American economy. The law's structure for employee classification as exempt or nonexempt from minimum wage laws and overtime requirements reflects that simpler time. Although it has been updated periodically in the decades since, the FLSA's classification scheme is often difficult to apply to more modern service- and information-related jobs.

One type of employee that has proven especially difficult to fit into the employee classification structure – and has also been the plaintiff in hundreds of lawsuits – is managers. Today's lean, flexible workplace often necessitates that managers pitch in and perform nonexempt work, rather than stand around with a clipboard in hand directing other employees. The more nonexempt work they do, the more likely it is they need to be paid overtime.

Complicating matters is the fact that employees' job duties change frequently. Employers often make the mistake of classifying all employees with a particular job title as exempt. When changes in the workplace necessitate changes in an employee's job duties, that classification can be jeopardized. HR is well-positioned to stay on top of these changes, and must remember that FLSA classification is an ongoing challenge, not a one-time task.

In addition, it's important that employers follow state requirements regarding employee classification.

Trends: The two-headed dragon of employee lawsuits and government enforcement continues to make FLSA classification a key concern for HR. Many lawsuits have been collective actions, in which hundreds and sometimes even thousands of similarly situated employees sue as a group. The standard for certifying these collective actions is relatively lenient compared to other employment laws, and for many years, most courts allowed them to proceed. Recently, the pendulum appears to be swinging in the other direction, with more and more courts taking a more stringent stance on whether employees truly are similar enough to sue as a group.

Author: Michael Cardman, Legal Editor

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