decades old understandings of what is an
exempt employee. The working foreman
in the construction industry, the loan office in the mortgage industry, the home
companion who works for a third-party
home care company, and certain assistant
managers at retail establishments are just
some of the many positions that used to
be considered exempt and are now considered non-exempt.
To make matters more confusing for
companies, the President in the first quarter of 2014 asked the DOL to update the
white collar exemptions that cover supervisors, administrators and other professionals to expand the number of workers
who can receive overtime. Many believe
that the new regulations will significantly
increase the salary basis test. (Currently,
supervisors, administrators and professionals must earn at least $455 a week to
be eligible for the exemption.) Additionally, some commentators believe that the
duties test to determine whether an employee is in an exempt position will be
become more restrictive. The proposed
regulations will likely be introduced
sometime in 2015. As companies and industry groups look at responding to the
proposed regulations, the unpredictability regarding who is an exempt employee
could lead to additional litigation.
Misclassifying exempt employees is not
Claim of Choice
the only issue for companies. In 2014,
many companies were also being sued for
failing to pay employees for hours work.
These claims are usually not about em-
ployers purposefully trying to avoid pay-
ing employees. Rather, these claims are
much more discreet and unintentional.
For example, companies are being sued
for having employees who work on occa-
sion while they are on a non-paid lunch
breaks; hourly employees using a PDA
to e-mail and talk to clients or venders
after work; and hourly employees who
are required to arrive to work 15 minutes
early prior to clock-in time. In many of
these cases, the company did not realize
that their own policies were unintention-
ally creating lawsuits. However, unlike
wrongful termination and discrimination
claims, the company’s intent is irrelevant
in a wage and hour claim. A violation of
the FLSA regardless of the reason, can of-
ten times be an unforgiving mistake.
FLSA lawsuits are the claim of choice for
many employee-side attorneys. It is fairly
easy for a disgruntled employee to locate
and match-up with a plaintiff’s attorney
these days. The savvy plaintiff’s counsel
receives the call from the disgruntled
employee and directs the conversation
to how the former employee was paid.
The plaintiff’s counsel often finds a wage
and hour violation. Popular cases for
employees’ attorneys include compensa-
tion for time spent donning and doffing,
improper classification of employees as
independent contractors, and exemp-
tions from overtime pay requirements.
These are much safer claims to file than
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