Same Duties, Different FLSA-status??

Hi All! I have an hourly employee who recently did his own FLSA-research to determine whether or not his job could be considered Exempt/Salaried. He does a job "requiring advanced knowledge" (thorough understanding of Chemistry) and likely meets the "Professional" exemption. However, this job also involves a significant amount of manual labor (driving a semi-truck, manually moving full 55-gallon drums of waste, packaging and de-packaging, etc.). We believe that the part of his work "requiring advanced knowledge" is his primary duty, however, the manual "blue collar" labor part of the job is a close second. With all of that in mind, the decision was made several years ago to keep this employee (or, more properly, the employees in this department) as non-exempt, hourly employees who receive overtime. The hours of this job can be somewhat unpredictable - most weeks employees make considerable overtime, other weeks they may come in under 40 hours. This particular employee seems to frequently come in under 40 hours per week, even though his peers doing the same job tend to have overtime each week. At any rate, the employee in question is about to be on light-duty for several weeks following a surgery and coincidentally has petitioned us now saying that because his work qualifies as Exempt, he would like to become salaried ASAP.

Here's my actual question: He asserts that it would not be problematic for him to be the only employee in his department who is considered exempt/salaried because the law doesn't say that you have to treat all employees with the same duties the same way. (And, they are Exempt, we're just choosing to treatment as Non-Exempt.) While I can't find anything in 29CFR541 that expressly says "all employees with the same duties must be classified the same way", I just see potential for problems with an approach like that. Help! I need to be able to provide feedback to my supervisors in a meeting this afternoon to explain reasons why this is unwise. What are your thoughts? (Or you disagree with me and think this is a great idea?) Thanks as always for your input!


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  • Sorry for the long response. Here are my 2 cents.

    On job classification - I go into every classification analysis with the presumption that they are non-exempt, and then have to make sure they pass all prongs of the exemption test in order to classify as exempt. So for the professional exemption: 1. Do they make more than $455 per week? 2. Is their primary duty doing work requiring advanced knowledge which is intellectual in character and includes work requiring the consistent exercise of discretion and judgment? 3. Is that advanced knowledge in the field of science or learning? 4. Is that advanced knowledge something that is usually acquired by a prolonged course of specialized intellectual instruction? [B]5. Does the employee spend less than 20% of their time on activities not directly & closely related to the "exempt" duties?[/B] If all 5 of those answers are "Yes," the employee is exempt.

    So. What percent of his daily or weekly duties is spent on the chemistry component? If it's more than 20, they aren't exempt.

    All that being said, I beleive you are correct (can one of the lawyer moderators confirm??), there is no mandate out there that says you have to grant FLSA exemptions, as long as you are at least paying them minimum wage and OT for hours over 40, and you are treating everyone in similar situations the same.

    On the issue of classifying one but not all as exempt or non-exempt: Don't. Do. It. Job classification applies to the JOB, not the person. If you have a group of individuals who are all doing the same job (have the same job description, perform substantially similar tasks, are measured by the same metrics, and on and on), they should all be classified the same.

    Here's why this can become problematic: Job position is classified as non-exempt, either by failing the exemption test or by choice. One employee is somehow granted an exemption, even though they do the same job as the other employees. 6 months down the road, that one employee gets mad at the company for one reason or another, and marches down to his nearest DOL office and files a wage and hour compliant, stating that your company has misclassified him, resulting in the loss of overtime wages. Now, you're on the hook for backpay and penalties.

    Another good legal/technical term to throw out there to your supervisors - disparate treatment. It's not a road you want to go down.

    I think your best course of action is to explain the possible consequences of treating similarly situated employees differently, which becomes even worse if any of the people in these groups are in a protected class. You want to avoid wage and hour lawsuits for NOT paying overtime, and avoid any sort of disparate treatment. For the employee who is requesting the exemption, I would stick to your guns and maintain that the company's pay practice for that position is to classify as non-exempt, and explain the protections this allows him under the FLSA.

    That's a lot. Sorry :) Good luck and let us know how this turns out!
  • That wasn't 2 cents... that was more like a dime. But "worth every penny!" Thanks for your thoughts... my meeting is in about an hour and I plan to share some of these points. I'll let you know how it goes.
  • Is that advanced knowledge in the field of science or learning? 4. Is that advanced knowledge something that is usually acquired by a prolonged course of specialized intellectual instruction?

    I struggle with these. . how do you define "prolonged" and "specialized" and "learning". Can someone give me some examples of these positions?
  • kdspa - how did your meeting go? Hope you achieved your desired outcome.
    Our rule of thumb as always been if there is any doubt if the position is non-exempt or exempt - leave it non-exempt. If there is ever a complaint and the DOL comes in to investigate they will look at all positions not just the one in question.

    sonny - I am sure you understand this as well if not better than I do... I heard in a conference once upon a time that prolonged referred to education after high school - usually a college degree in a specialized field. Such as chemistry in the above example. This would also include any course work after the degree needed to stay current in their specialized field of study.
  • We don't use this classification, but it may fit a current situation which is why I am thinking of it at all. We have very few exempt positions and they readily fall into other categories. The latest do not We always err to non exempt and many of our non exempt could easily be exempt .

    So does any degree work? or does it have to be science? a bachelors in Sociology? Is that learned or a science? I have a Masters. . does a Masters qualify you? a masters seems to me to be more "prolonged". I have 3 very unique positions that don't fit anywhere but maybe here. If I apply Stillneeds coffee's questions, I can answer yes to all but struggle on 3 & 4. . One has a Masters in Public Archeology. .I think that would work? A bachleors in Public realtions? and a bachelors in American studies?

    I think I may be making this harder than it is.
  • @sonny -

    The key to this is deciding whether the "prolonged course of specialized instruction" in which they gained this "advanced knowledge in the field of science or learning" is used in their job. So, someone with a Masters in Archaeology, although it's in the field of science & learning, does not count toward this exemption if the employee in question is a sales assistant.

    Also, the field must be science & learning, not the degree. So, not every
    "Bachelors of Science" degree will qualify, only those whose major area of study deals with an aspect of science & learning.

    We use this exemption for positions like: Controller, Finance Manager, Clinical medical Director, Nurse Case Reviewer. Please note these titles don't necessarily mean ever person in the world with those titles is exempt, but for the duties they have at our company, they do pass the Professional Exemption testing.

    Hope that helps.
  • Thanks SNC, I had done some more research and that coupled with your response, has helped.
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