Labor & Employment Law

Exempt Status and Job Titles: They Do Not Matter

By Mark E. Tabakman, Esq.

It is important for employers to feel that they have selected the right job title for their employees, but just because the title sounds perfect, that does not mean the chosen title will automatically shield employers from misclassification liability under the exemption rules of the Fair Labor Standards Act (“FLSA”). When deciding if a position is to be exempt or non-exempt, it is important for an employer to look at the components of each particular position to find out what is unique about each. In other words, employers should consider that even within different positions of a particular job title, some positions may be part time, others may be “as needed” and some may require much longer hours than others. Classifying one position as exempt or non-exempt in a particular job title does not mean that all of the positions in that job title should be treated the same.

 
A recently published United States Department of Labor (“DOL”) Opinion Letter has clarified that choosing the right title is not the end of the inquiry, as liability can come from misclassifying some positions within a particular job title and not others. The Letter provided an example of a group of nurses that could be classified “as needed,” and therefore classified as non-exempt under the overtime rules, and yet, such a classification would not change the status of other nurses who were classified as exempt.

 
The DOL noted that the key to proper employee classification as exempt or non-exempt is based on two factors—salary (or compensation) and job duties. Providing a hypothetical situation, it noted that an employer can pay some employees within a particular job title on an hourly basis and other employees in that same job title on a salary basis, and the fact that some are paid hourly will not necessarily affect the exempt status of the exempt/salaried employees. This is because determinations of exempt status are based on an assessment of each individual employee’s unique job duties and salary basis of compensation.

 
In this same Opinion Letter, the DOL clarified that an exempt nurse’s exempt status is not affected by paying shift differentials because a “pre-determined salary does not have to include all of the compensation that the employee will be paid.” This guidance makes it easier for employers to feel free to pay salaried employees on an hourly or shift basis for extra work without having to incur liability, assuming the threshold salary of at least $455 per week (under the FLSA) is paid. This is important to the ever-important goal of keeping tabs on a workforce that is becoming more flexible, whether because the business is growing, or just because the overall nature of the workplace is changing.

Full post as published by Wage & Hour - Development & Highlights on October 30, 2007 (boomark / email).