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Claim Your Free Copy of Top 100 FLSA Overtime Q&As

We’ve compiled a list of the 100 most commonly asked questions we have received on the federal Fair Labor Standards Act (FLSA) overtime regulations.
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This report, "Top 100 FLSA Q&As", is designed to provide you with an examination of the federal FLSA overtime regulations in Q&A format, including valuable tips for bringing your workplace into compliance in an affordable manner.

At the end of the report, you will find a list of state resources on wage and hour issues. This report includes practical advice on topics such as:
  • FLSA Coverage: How FLSA regulations apply to all employers and any specific exemptions from the overtime requirements
  • Salary Level: Qualifying for exemptions and nonexempt employees
  • Deductions from Pay: Deducting for violations, disciplinary reasons, sick leave, or personal leave


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March 04, 2013
Q&As on exempt vs non-exempt employee classification

In a recent BLR webinar, Daniel B. Chammas gave us answers and more insight into getting exempt employees properly classified to stay in compliance with the Fair Labor Standards Act FLSA. Chammas answered participant questions at the conclusion of the webinar regarding overtime exempt employees.

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Q. Can you tell us more about the computer employee exemption? We are especially interested in misclassification issues for IT professionals and helpdesk positions.

A. The computer employee exemption could warrant a whole webinar on its own. The problem is that there are very technical qualities that a computer professional has to have to qualify. In general, the rule for helpdesk people is that they are generally considered to be non-exempt. Help desk personnel typically fall under the provisions that say that an employee who follows a prescribed procedure and does their job according to a set of rules (i.e. without independent judgment and discretion), is non-exempt.

It is often found that first-level or tier-1 computer helpdesk team members often take the simpler questions; these questions may still be highly specialized and require specific knowledge, but that doesn’t make the employee exempt. The computer professional exemption is reserved more for people who write code (for example); people who develop systems; people who create programs; people who consult with users to determine hardware, software, or system functional specifications; etc. These types of computer professionals would be exempt. Help desk – especially the entry-level tiers of the help desk – are typically non-exempt.

Q. Would consumer loan officers at a bank fall under the administrative exemption? What if they also open accounts?

A. There are two parts to the test of whether someone qualifies for the administrative exemption: are the activities part of how the business runs? And does the person exercise independent judgment and discretion to make important decisions? As such, answering this question depends on what is entailed in the process, such as whether it is standardized or not.

This is actually a great example of one of the pitfalls of misclassification: looking solely at the job description and title and making a conclusion based on that alone. The person would be exempt if they spend most of their day exercising independent judgment and discretion and their job relates to the way the business runs.

Q. Are employees that make daily decisions – such as overdrafts, waiving fees, opening accounts, selling bank products, and serving customers – exempt or non-exempt?

A. This question is much like the last. The daily decisions would be the more important part in determining whether or not they are exempt. They would not qualify for the executive exemption because they don’t supervise people. They would not qualify under the professional exemption because they’re not using a prolonged course of education and study. As such, the only possible exemption would be the administrative exemption.

The first prong of the administrative exemptions requirements would probably be met (having a position directly related to the management or business operations of the company). But there is a question about whether the daily decisions involve independent discretion and judgment. To the extent that those decisions are significant versus minor, it may qualify, but would need to be assessed based on the specifics of your situation.

"It’s difficult to make a conclusion on an exemption based again on job titles or job descriptions. There really has to be an in-depth analysis of what the person actually does." Chammas confirmed.

For more information on the correct classification of exempt employees, order the webinar recording of "Exempt vs. Nonexempt: How to Find and Fix Misclassification Mistakes." To register for a future webinar, visit http://catalog.blr.com/audio.

Daniel B. Chammas, Esq., is a partner in the labor and employment practice group in Venable’s Los Angeles office. He has extensive experience defending employers in wage and hour class actions and other employment disputes, from actions for unpaid wages and sexual harassment claims to wrongful termination litigation and racial discrimination complaints.

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