Penalties for Exempt/Non-Exempt misclassification

Juli

I am looking for the penalties that a company can endure for misclassifying positions as "Exempt" when it should have been "Non-Exempt".

We have about 8 employees out of 30 that are misclassified.

How do we do damage control at this point? Employee communication?, Do we need to go back and Pay OT for the duration of their employment? restitution?, Federal penalties? etc...

Please advise.

Margaret Morford

If you draw a Wage and Hour audit, they can go back two years for a violation, three years if they decide it's willful.

You can always reclassify a job at any time. Are you changing the classification because the job duties have changed or because the job was misclassified as salaried? I would be very careful about telling an employee that he/she was misclassified. If the employee calls Wage and Hour, you may draw an audit for that class of job and owe all employees in that class overtime wages for the past two or three years. You probably want to explain to the employee that job duties change as well as Wage and Hour's interpretations of what is an exempt or non-exempt position. As these changes take place, the organization is constantly updating job classifications. Based on the current responsibilities for this job and current readings of the statues and recent court decisions, you feel like this job is now a non-exempt position. Because you have decided to reclassify the position to non-exempt, the employee is now eligible for time and a half for all hours worked over 40. Position it as an added benefit to the employee. If you have any questions, feel free to call me at 615-371-8200.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]