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This report includes a summary of key changes, including the salary level test and salary basis test.

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November 16, 2010
Limiting the Risk of Overtime Exemption Misclassifications: What You Can Do Now

What can you do now to keep ahead of the game in terms of ensuring your company has the correct classifications of employees under the Fair Labor Standards Act (FLSA) overtime exemption policies? In a BLR webinar titled "Advanced Exemption Audits: Evaluate Your Overtime Classifications Now To Avoid Costly Trouble Later," Mary Topliff, Esq., outlined some of the primary actions you can take today, regardless of whether your company plans an overtime exemption status audit or analysis anytime in the near future:

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The first thing you can do is to keep tabs on your industry. This is helpful to see what might be coming down the pipeline and to see trends. This might include watching for other class action lawsuits and other legal claims that might be related to your industry or company.

You can also manage your immediate risks by taking the following actions:

  • If you think jobs might be misclassified, spend the time to analyze them and reclassify them if necessary.
  • Limit overtime work for any jobs that you feel might be considered to be in the “gray” zone of overtime exemption classification.
  • Consider requiring time keeping for “gray” zone jobs. This can be problematic for some employees, but will give you information to use in the event that a job needs to be reclassified.
  • Begin gathering information on job content as you're hiring or as the issue arises. Having detailed job description serves many purposes, not just overtime exemption classification.

Mary Topliff, Esq. founded the Law Offices of Mary L. Topliff in San Francisco in 1997, after practicing civil and employment litigation for nine years. ( The firm specializes in employment law counseling, training, and compliance, focusing on practical solutions to avoid costly legal issues. She has advised many organizations regarding overtime exemption analyses and strategies for minimizing the risk. Topliff is a published author and frequent speaker on legal issues impacting the workplace.

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