Employment Law Alliance



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Questions and Answers

Hot Topics in U.S. Wage and Hour Law

April 19, 2012

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We are considered added a category of salaried, non-exempt employees. Would we be required to pay for non-productive time for these employees? Should they be entitled to breaks like hourly employees?

Eric Hemmendinger

A: One reason employers classify employees as salaried non exempt is to use the fluctuating workweek method of computing overtime. To use that method, employees must be paid a guaranteed amount per week, without deductions for partial days off or breaks.

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Can you repeat what you said about help desk employees?

Rebecca McGinnis

A: Help desk employees are not exempt under the computer exemption and arfe entitled to overtime. If your help desk people are also drafting software, tec. they could be exempt, but just help desk and troubleshooting is not exempt.

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Higher education is a unique culture that believes being exempt is a status symbol and a reward for good performance. Many employees would rather be exempt and not get overtime for this reason. How do you combat this mindset?

Eric Hemmendinger

A: Faculty members and administrators in higher education will often qualify for an exemption from overtime. This is specifically covered in the regulations which appear in 29 CFR 541.

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Related to your comment regarding the advent of and reliance on technology in the workplace, Programmer/Analyst positions are no longer specific to technology (IT) organizations. What guidance can you provide on the use of the Computer Exemption in jobs blending programming with product/operations support?

Eric Hemmendinger

A: The exemptions look at the employees' primary duty.

Rebecca McGinnis

A: Further to Eric’s response, programmer/analysts are exempt under the regulations even if they are performing help desk or troubleshooting duties so long as their primary duties are the programmer/analyst duties.  They may also fall under the professional exemption if they supervise 2 or more full-time programmers, and potentially the administrative exemption if their primary duties include “work such as planning, scheduling and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the employer or the employer’s customers.”

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Does supervising employees at the business make a pretty good case that a person is NOT an Independent Contractor?

Leonard Court

A: If the individual is truly supervising, which includes influence over hiring and firing, then the person is probably not an IC.

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Do you think there is ever a case where a staffing company may have exempt employees classified as non-exempt hourly employees (meaning those that are placed at a client, not our internal staff).

Eric Hemmendinger

A: It depends on the duties the worker performs for the client.  If in doubt you can’t go wrong by treating as non-exempt.

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I have a couple of employees that have been classified as exempt for many years. By FLSA definition they are actually non-exempt. The employees never work overtime (over 40 hours). My question: should I reclassify the employees? After all these yrs?

Leonard Court

A: You should reclassify them. Currently, you do not appear to have exposure under federal law because they are not working overtime. However, that could change in the future. Also, they may fabricate a claim and you do not have any time records to dispute.

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California Brinker case: If a non-exempt employee misses both rest breaks and also is not able to start their meal period within the first five hours of starting work, is the employee owed three additional hours of pay or just one hour of regular pay?

Contact Felicia Reid for the answer: freid@.

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When an employee is working out of a number of offices in different states - where would their claim reside? Can they file claims in all jurisdictions where the work occurred?

Eric Hemmendinger

A: Federal law covers all states. This would present a complicated issue if the employee worked in states with different laws.

Felicia Reid

A: Whenever they work in California, even if temporarily, California wage/hour law will apply, according to a new decision of our state Supreme Court. I would doubt that other states have such a rule.

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Were the Novartis, Oracle, Dick's Sporting class/collective actions? Was that why they were so expensive?

Eric Hemmendinger

A: Yes, that is why they were so expensive.

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Has there ever been a case where an individual who has been classified as non-exempt, sues to be reclassified as exempt?

Eric Hemmendinger

A: No, you can’t violate the law by treating an employee as non-exempt.

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My company uses broadbanding with very broad/general job summaries. We don't use formal job descriptions or questionnaires. What's the best way to classify positions with this general scope, or do you suggest becoming more formal to reduce risk?

Eric Hemmendinger

A: The classification decision depends on the actual job duties. I have found that job descriptions are often unreliable. It's best to interview the supervisors and often advisable to interview the employee as to their duties.

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Would employees who manage the daily duties for the clients they are assigned fall under the administrative exemption?

Eric Hemmendinger

A: The regulations say that administrative work can be performed for the employer or the employer's customers.

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We are an engineering firm and our engineers/architects all have degrees - can I assume they fall under the professional exempt status?

Leonard Court

A: You still must meet the other exemption requirements. For instance, they must be paid a salary rather than an hourly wage.

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Regarding contractors-have you seen any lawsuits against employers who are using "payrolled" workers paid through a third party? What are the risks of classifying this type of worker as contractor if you have employees performing similar work?

Eric Hemmendinger

A: Client and staffing agencies are typically sued as joint employers. Both can be liable, even if only one of them created the violation.

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Would you confirm that you said a Help desk person should be considered non-exempt? We are hiring a Helpdesk Specialist, and I want to make sure we classify correctly. The position does require education in the computer field.

Rebecca McGinnis

A: Help Desk people are generally not exempt, even if they have education in the computer field. The computer employee must be developing, drafting, hardware, software, etc, not just helpdesk and troubleshooting to fix problems.

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One reason employers classify employees as salaried non exempt is to use the fluctuating workweek method of computing overtime. To use that method, employees must be paid a guaranteed amount per week, without deductions for partial days off or breaks.

Eric Hemmendinger

A: No, you do not have pay for breaks. I will cover that in minute.

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Do clinicians, counselors, and social workers qualify as Professionals?

Rebecca McGinnis

A: Depends on their educational experience and job duties as to whether they are professionals.

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We are not using a fluctuating workweek for our salaried non-exempt employees. Are we still required to pay for non-productive time?

Eric Hemmendinger

A: No. Assuming the employee has been completely relieved from duty for 30 minutes or more and is free to use the time as his or her own.

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How do you document the time spent for a non-exempt employee who has a blackberry and is on "call" and let’s say they take a call on a Saturday for 30 minutes, do they document that time with the supervisor since they are not at work and they can't clock in?

Eric Hemmendinger

A: Yes, there should be a way of recording the time, such as telling a supervisor.

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If company policy states employees are not allowed to check email/log on to their computer outside of the office...and the employee does anyway...is the company liable?

Leonard Court

A: If the company tolerates the activity and accepts any benefits from it, the company is still liable. The company should discipline the employee for a violation of work rules.

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I have 2 folks that are non exempt and are paid $50 to carry the phone (on call), the VP states that the $50 covers the first 2 hours of work - is this ok? Or should they receive $50 just for being on call & then paid if they do work?

Rebecca McGinnis

A: If they get the $50 for on call pay for up to 2 hours of actual work (even if they do not work), that is OK.

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With regard to social media, if you have a director who uses Twitter to tweet recognition about his area, should you require non-exempt employees to record time each time they see or respond to a tweet. Participation in Twitter is voluntary.

Eric Hemmendinger

A: In a sane world, this should be de minimis, unless the Tweets were excessive in number. If you want to be more conservative, you could restrict Tweeting to working time. Tell the director to confine his tweeting to 9-5.

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We have a lot of remote locations and as a part of our bonus structure need to know how many hours our exempt managers are working so we have them clock in and out. Is this violating any FLSA wage and hour laws?

Eric Hemmendinger

A: No, you can keep track of exempt employees’ time as long as they receive a salary that does not vary based on hours worked.

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So on a fixed salary, we can't clock them if they're different locations?

Eric Hemmendinger

A: You can keep track of salaried exempt employees’ time. Including people who work multiple locations.

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What if work uniforms are donned/doffed at home vs. work place, is this compensable?

Eric Hemmendinger

A: The answer depends on a lot of variables. Are the employees covered by a labor contract? Are the uniforms required by the employer? Are they required for safety reasons? Are employees allowed to don and doff at home?

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If we have an employee working as an engineer, but they did not earn an engineering degree, should they be considered non-exempt?

Rebecca McGinnis

A: If they do not have an engineering degree, the regs do allow the exemption for employees who have the same knowledge level and perform the same work as degreed employees, but attained advanced knowledge thru combination of work experience and instruction.

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If an employee voluntarily sticks around to watch a process – i.e., a cook who wants to observe a chef - do we have to pay for this time?

Rebecca McGinnis

A: Generally not so long as the chef does not have the cook doing anything while he watches.

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Volume of work of an exempt reduced to various reasons for example economic.. May an employer change status from exempt to non-exempt due to this situation from a full-time to part-time or must be maintained as exempt?

Leonard Court

A: An employer may change the employee to non-exempt and probably should.

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Is the California requirement that non-CA residents working in CA receive CA overtime apply only to CA employers?

Contact Felicia Reid for an answer: freid@.

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OK, so if an employee works 8 hours with a 30 minute lunch and 2 10 minute breaks, if the employee does not take the 30 minute lunch or 2 10 minute breaks, they get paid for the time worked in addition 2 hours?

Contact Felicia Reid for an answer: freid@.

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I thought the lunch break was before the fifth hour? You stated it was after 5 hours.

Contact Felicia Reid for an answer: freid@.

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Can someone touch on non-exempt travel and what is paid time and what is not?

Rebecca McGinnis

A: If the travel is all in one day – e.g., 7:00 a.m to 7:00 p.m., all travel time is compensable. If travel is overnight, only travel that crosses over the regular work day is compensable, e.g., travel between 9 and 5 if that is the employee's typical work day.

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Brinker case: If employee is travelling on business in a plane on an overnight trip and is relieved of all work duties, if the employee does not take a meal break, is the employee owed one hour of premium pay?

Contact Felicia Reid for an answer: freid@.

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Talking about a non-exempt from another state being in CA for work, what if I send him or her to CA for a workshop or conference, do I have to observe CA's rules? We do observe our state's when they travel, which is not as generous as CA.

Contact Felicia Reid for an answer: freid@.

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