Exempt/Non-Exempt Issue

LindaS

I have an employee who is currently exempt. Since I have been with this company I have questioned whether she should be exempt as her job duties do not require alot of independent judgement, etc. Anyway with the new regulations it has become even more apparent that she should NOT be exempt and I discussed this with her today and she agrees as well. The problem is that she is upset about this as she does NOT like the idea of being required to report her hours, etc. and feels that her years of service warrant her exempt status and the ability to, consistently, work less than 40 hours per week. In addition my boss, the president of the company, wants to "stretch" her duties to allow her to maintain her exempt status. Any ideas how to get the message across regarding this problem?

Down_the_Middle

The argument of consistency is probably the strongest and most valid basis for whatever you decide to do. As a DOL investigator once told me, "It's far more important to treat employees consistently regarding their exempt status than it is to justify your decisions based on exceptions." I understand the employee relations impact of doing this, cuz most border-line exempt employees do not want to change their status; however, the fact that she's misclassified (& the employer arguably knows) could some day lead to an allegation of willful violation. Make a compelling argument to the Pres and if it doesn't fly, there are probably other more important issues to draw the line in the sand. Good luck..........

Don D

I agree; however, your assignment from your boss is to "stretch her duties to maintain the exempt status". I recommend you first work through that exercise and see what you come up with. Whatever you determine it will take to have her pass the exemption test, lay those things out for your boss. Show him just how her duties will have to 'stretch' to justify exemption. If he wants it done, then stretch her duties and tell her that's the deal. If he doesn't want her duties stretched, suggest to him that the only alternative is non-exempt status. There's no middle ground. Let him make the call.