FLSA Administrative and Executive Exemptions: Avoiding, Auditing and Correcting Misclassifications

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1 Presenting a live 90-minute webinar with interactive Q&A FLSA Administrative and Executive Exemptions: Avoiding, Auditing and Correcting Misclassifications WEDNESDAY, AUGUST 5, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Robert M. Hale, Partner, Goodwin Procter, Boston Janet A. Hendrick, Of Counsel, Fisher & Phillips, Dallas Staci Ketay Rotman, Partner, Franczek Radelet, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about CLE credit processing call us at ext. 35.

4 FLSA: Exemption Overview Janet A.

5 Overview What does the FLSA require? What are the requirements for the executive exemption? What are the requirements for the administrative exemption? What are the key considerations for self-audits and correcting misclassifications? 5

6 The FLSA Requires Employers to: Pay non-exempt employees at least the minimum wage (currently $7.25 per hour) Pay employees 1.5 times their regular rate of pay for all hours worked over 40 in a workweek Maintain accurate pay records for all employees 6

7 State Laws May impose more demanding standards Stricter exemption standards Higher salary basis Higher minimum wage Different overtime requirements 7

8 The Dangers of Noncompliance Tens of thousands of FLSA lawsuits filed in last decade The trend is not waning Billions in judgments and settlements 8

9 FLSA Exemptions Starting point: Employers must comply with minimum wage, overtime and recordkeeping requirements for ALL employees UNLESS an employee is exempt (not subject to one or more requirements) Default position: Employee=non-exempt 9

10 Exemptions Generally Exemptions are defined by law, not by agreement, job descriptions, or parties intentions strictly interpreted If an exemption is disputed, the employer has the burden to prove that each requirement is met (otherwise, the employer loses) 10

11 Exemptions Generally Exemptions relate to individuals Detailed, accurate, current job information is essential Based upon actual work, real facts Job descriptions do not make employees exempt" USDOL, plaintiffs lawyers will dig into the work the employees actually do 11

12 Three Criteria For Exemption Salary Level Salary Basis Job Duties 12

13 $455 per week Current Minimum Salary Level Paid free and clear Cannot off-set with board, lodging or other facilities May be paid in equivalent amounts for periods longer than one week Biweekly: $910 Semimonthly: $ Monthly: $1,

14 Proposed Overtime Rule Changes 7/06/15: DOL published proposed changes to FLSA overtime regulations. Proposed changes: 100% increase in the minimum salary threshold for exempt employees from $455 to $921 per week (from $23,660/year to $47,892/year) Annual updates to minimum salary threshold 22% increase in highly compensated employee exemption ($100,000 to $122,148) Annual updates to highly compensated threshold 14

15 So What s the Good News? DOL did not propose changes to the duties test for exemptions The Department is also considering revisions to the duties test in order to ensure that they fully reflect the purpose of the exemption... [and] is seeking additional information on the duties test for consideration for the Final Rule. Stay tuned buckle up 15

16 Salary Basis Test Must be paid on salary basis (rather than an hourly basis) Employee regularly receives predetermined amount of compensation each pay period Cannot be reduced because of variations in the quality or quantity of the employee s work Employee must receive his/her full salary for each week he/she performs any work, regardless of days/hours worked, but... 16

17 Permissible Deductions Absence of one or more full days for personal reasons other than sickness/disability Substitution of accrued paid leave for partial day absences does not destroy the salary basis Absence of one or more full days due to sickness/disability if deduction is consistent with bona fide plan, policy, or practice of providing compensation for salary lost due to illness Offset of amounts employees receive as jury/witness fees or military pay Penalties imposed in good faith for infractions of safety rules of major significance Unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions 17

18 Consequence of Impermissible Deductions Actual practice of making improper deductions? Lose exemption Isolated or inadvertent? No loss of exemption if employer reimburses employee for improper deductions 18

19 Duties Test Primary duty must be performance of exempt work Principal, main, major or most important duty Based on all facts, with major emphasis on job as a whole Comparative importance of exempt duties Amount of time spent performing exempt work ( useful guide ) >50% generally satisfies primary duty test Employee s relative freedom from direct supervision Relationship between employee s salary and wages paid to others for same nonexempt work performed by exempt employee 19

20 White Collar Exemptions: The Executive Exemption Staci Ketay Rotman Copyright 2015, Franczek Radelet P.C. All Rights Reserved. Disclaimer: Attorney Advertising. This presentation is a publication of Franczek Radelet P.C. This presentation is intended for general informational purposes only and should not be construed as legal advice.

21 White Collar Exemptions any employee in a bona fide executive, administrative, or professional capacity is exempt from the minimum wage and maximum hour requirements of the FLSA 29 U.S.C

22 22 Exempt v. Non-Exempt: That is the Question!

23 23 $35.6M $3M $2.7M $38M $3.3M

24 Not Necessarily Exempt 24 Salaried employee Supervisor / foreperson Non-union employee Office staff

25 Executive Exemption Currently must be compensated on a salary basis at not less than $455 per week (pending increase with the DOL s proposed rules) Primary duty: managing enterprise or customarily recognized department or subdivision Customarily and regularly directs at least 2 FTEs or equivalent Authority to hire / fire, or recommendations as to hiring, firing, advancement, promotion, or change of status carry particular weight 25 25

26 Determining Primary Duties for the Executive Exemption Under the FLSA, the amount of time spent on each duty is considered, but not determinative Other Considerations include: The relative importance of the exempt duties (i.e., management) as compared with other types of duties The employee s relative freedom from direct supervision The relationship between the employee s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee Concurrent Duties 26

27 What May Constitute Management? Interviewing, selecting, and training employees; 27 Setting rates of pay and hours of work; Maintain production or sales records (beyond merely clerical maintenance);

28 What May Constitute Management? Appraising employee productivity and efficiency; Handling employee complaints; Disciplining employees; 28

29 Other Management Activities Planning the work; Determining the techniques to be used; Apportioning work among the employees; Determining the types equipment to be used in performing the work; Planning budgets for work; Monitoring work for legal or regulatory compliance; Providing for the safety and security of the workplace 29

30 Management Rule of Thumb Ask who is in charge of a department or subdivision of the company 30

31 Who is a Supervisor? Mere supervision is not enough; it must constitute a primary duty of the employee s job Supervision of non-employees is not included A supervisor must supervise at least two full-time employees An equivalent number of part-time employees is sufficient 31

32 Compare Example 1 to Store Manager supervises an Assistant Manager & Clerks 32 Performs non-managerial work 80% of the time Is only paid $2.21 per hour more than the Assistant Manager

33 Example 2 Store Manager with supervisory authority 33 Spends 75-80% of his time performing non-managerial tasks Is paid 18-30% more per hour than the next highest paid employee

34 Dollar General Litigation Both examples involved Store Managers, but resulted in different outcomes But: Example 1: the court found in favor of the employee [SJ Denied] Example 2: the court found in favor of Dollar General [SJ Granted] Employees had same job title Both were paid 18-30% more than the next highest paid employee in the store Both spent the overwhelming majority of their time performing non-managerial tasks So why the different decisions? 34

35 Information You Need What does the job description say? 35 If different, what does the employee do? How is the employee paid?

36 Job Titles to Watch For 36 Assistant Manager Executive Assistant Office Manager Paraprofessionals

37 FLSA Administrative and Executive Exemptions: Avoiding, Auditing and Correcting Misclassifications Robert M. Hale, Esq. Goodwin Procter LLP August 5, Goodwin Procter LLP

38 Administrative Employees Duties Test Overview The primary duty must consist of office or non-manual work That work must directly relate to the management or general business operations of: the employer or the employer s customers The primary duty must include: the exercise of discretion and independent judgment with respect to matters of significance Goodwin Procter LLP 38

39 Administrative Employees Office or Non-Manual Work Manual work work involving repetitive operations with... hands. 29 C.F.R (a) Non-Manual work includes: fieldwork by a union organizer. Rincon v. AFSCME (N.D. Cal. 2013) piloting an aircraft. McCoy v. North Slope Borough (D. Alaska 2013) Goodwin Procter LLP 39

40 Administrative Employees Directly Related to Management or General Business Operations Running or servicing a business vs. producing or selling a product. Examples: Loan Underwriters Assessing credit risk is part of a bank s lending function, which is production work. Davis v. J.P. Morgan Chase & Co. (2d. Cir. 2009) Mortgage Loan Officers Treatment of mortgage loan officers is in flux. Compare Henry v. Quicken Loans (9 th Cir. 2012) (mortgage loan officers exempt) with Administrator s Interpretation (DOL interpretation concluding that office-based mortgage loan originators are exempt; DOL authority upheld in Perez v. Mortgage Bankers Assn. (U.S. Sup. Ct. 2015)) Goodwin Procter LLP 40

41 Administrative Employees Directly Related to Management or General Business Operations Product Managers Training staff and advising on product enhancements to increase sales is administrative work. Blanchar v. Standard Ins. Co. (7 th Cir. 2013) Sales Managers Sales managers for banquet facilities provider were responsible for making sales and customizing events; due to extensive customization, work was primarily exempt administrative rather than sales work. Hines v. State Room, Inc. (1 st Cir. 2011) Investigators Insurance company investigators perform work directly related to the insurance company s general business operations; court concluded that the business of the insurance company was creating and marketing policies rather than asset protection. Foster v. Nationwide Mut. Ins. Co. (6 th Cir. 2013) Goodwin Procter LLP 41

42 Administrative Employees Discretion and Independent Judgment Discretion and independent judgment involves selecting from among courses of conduct. The exercise of a learned skill is not sufficient. Matters of significance concerns the importance of the matter to the business. The risk of bad consequences from mistakes is not sufficient. Both elements need to be satisfied. Goodwin Procter LLP 42

43 Administrative Employees Discretion and Independent Judgment Regulatory factors: Consider whether the employee: has authority to formulate, interpret or implement management policies or operating practices carries out major assignments in conducting business operations performs work that affects business operations to a substantial degree has authority to make commitments with significant financial impact has authority to deviate from policies negotiates for the employer concerning significant matters serves as a consultant or expert advisor to management is involved in business planning investigates and resolves significant matters or handles complaints Goodwin Procter LLP 43

44 Administrative Employees Discretion and Independent Judgment Examples: Investigators Treatment depends on whether employees are limited to gathering facts following established procedures or whether they are expected to use judgment in planning, conducting and concluding investigations. Compare Calderon v. GEICO Gen. Ins. Co. (D. Md. 2012), Ahle v. Veracity Research Co. (D. Minn. 2010) (investigators were non-exempt) and Fenton v. Farmers Ins. Exchange (D. Minn. 2009) with Foster v. Nationwide Mut. Ins. Co. (6 th Cir. 2013) and Mullins v. Target Corp. (N.D. Ill. 2011) (investigators were exempt) Goodwin Procter LLP 44

45 Administrative Employees Discretion and Independent Judgment Field Inspectors Field inspectors at construction sites who rely on manuals to guide the inspection process were not exempt. Blotzer v. L-3 Communications Corp. (D. Ariz. 2012) Account Managers Persons managing customer accounts under limited supervision exercise discretion and independent judgment with respect to matters of significance. Verkuilen v. MediaBank LLC (7 th Cir. 2011) and Hines v. State Room, Inc. (1 st Cir. 2011) Bookkeepers - Bookkeepers who made improvements in accounting systems and tax compliance exercised discretion and independent judgment with respect to matters of significance. Fox v. Lovas (W.D. Ky. 2012) Goodwin Procter LLP 45

46 Exemption Disputes Exemption Disputes Can Arise In Different Ways: Complaint To USDOL, Random Audit By USDOL, Lawsuit By One Or More Employees, Former Employees 46

47 Warning Signs of Misclassification Everyone in the office is salaried 47 This is how it s done in this industry Docking / deductions from salary

48 Mitigating Risk Offer Letter / Handbook: Salary covers all hours worked Handbook: Safe Harbor language for improper deductions 48

49 Best Practices Regularly Reconsider Exemption Status: Don't Fall For "Conventional Wisdom": "Everybody Treats These Jobs As Exempt. "The Employees Want To Be Exempt. "The Employee Agreed To Be Exempt. Whether A Particular Job Will Be Ruled Exempt Is Often Uncertain Risk tolerance: rank risk 49

50 Anatomy of a Self-Audit Why: risk assessment, compliance When: now and later What: one size does not fit all Who: involve counsel 50

51 Self-Audit Steps and Tools Paper Job descriptions Policies/handbooks CBAs Time records People Counsel HR/Legal Managers Process Review Interviews Checklists/questionnaires 51

52 FLSA Compliance Audit Privilege Considerations Scope of attorney-client and work product privileges Key elements: Attorney-client privilege: Communication is to secure legal advice and confidentiality is maintained Work product privilege: Information is collected in anticipation of (or due to existing) litigation; a generalized concern about litigation is insufficient Goodwin Procter LLP 52

53 FLSA Compliance Audit Privilege Considerations Best Practices: Explicitly authorize the audit for legal compliance Primary responsibilities should be with Legal, not HR Include privilege legends on communications Minimize documents Restrict dissemination of audit work product Consider document retention protocols Goodwin Procter LLP 53

54 Job Descriptions Current, Accurate, Well-Written Ones Can: Help Management Make A Good Decision Play A Role In Defending Exempt Status Unrealistic, Inaccurate, Puffed-up, Out-Of-Date, Or Poorly-Written Job Descriptions Can: Cause Management To Make An Incorrect Decision Hurt Defense Efforts 54

55 Best Corrective Practices Best: get it right up front But, when you didn t: Quickly Consider What To Do To Correct Any Problems Be Careful, Thoughtful About How You Implement The Changes 55

56 FLSA Compliance Audit Damages Considerations Determining hours worked when time records have not been maintained. Anderson v. Mt. Clemens Pottery Co. (U.S. 1946) permits proof by plaintiffs via good faith estimates. Ongoing disputes regarding whether time and one-half or half-time rate applies to misclassified salaried employees Calculation of overtime based on bonuses Statute of limitations two or three years Liquidated damages up to two times back wages Goodwin Procter LLP 56

57 Rectifying a Misclassification Prospective or retroactive? 57 How far back? How many employees? Self-Report? What to communicate to employees?

58 Limited Options 58 Option Is it legal? Immediate Cost? Risk of future claims? Ignore the problem. No. Integrity Fix going forward only. No. $$ Higher risk of wilful violations, penalties, if caught May trigger further claims, higher risk of wilful violations, penalties, but risk diminishes with time Fix going forward and retroactively Yes $$$ Reduced, but employees may still be able to claim extra pay Fix going forward and retroactively with DOLsupervised or courtapproved settlement Yes $$$$ Claims will be resolved, but seeking DOL involvement or waiting for litigation will likely expand scope of claims, drive up costs

59 Retroactive Payments Calculate amount owed and document calculation If amount is uncertain (e.g., because hours were not tracked) seek employee s agreement Obtain signed acknowledgement from employee Consider requesting a release in appropriate cases, but understand it may not be enforceable. 59

60 Can FLSA Claims be Waived? 60 Waiver and Release Acknowledgement

61 [COMPANY LETTERHEAD] ACKNOWLEDGEMENT The ABC Corporation (the Company ) employee named below ( Employee ) has been advised as of this date that her job as a Customer Services Account Manager with the Company is being modified effective September 1, 2015 ( Effective Date ). As of the Effective Date, Employee s new job title will be (Senior) Customer Service Representative and will thereafter be categorized as nonexempt for purposes of the overtime pay provisions of applicable state and federal wage/hour laws. Employee acknowledges that the basis for this action as been fully explained by the Company and Employee concurs with this action. 61 The Company has calculated the amount of additional pay that Employee would have earned if the Employee had been eligible for overtime over the last three years, which equals the payment listed below. Employee represents that she does not know exactly how may overtime hours she worked but that she worked no more than overtime hours during this period. Employee acknowledges and agrees that she has analyzed the number of hours she worked during this period and that the payment amount listed is accurate and represent s full compensation for any overtime hours worked during the three year period. Employee further acknowledges and agrees that the Company has no obligation to make this payment. Employee agrees that, in exchange for the payment listed below, Employee waives any and all claims for additional unpaid wages, salary, overtime pay or other compensation for work performed for the Company to date. Employee represents that she has been paid in full for all hours worked fro the Company to day. Payment to Employee: $ (minus applicable withholdings) Employee has read this acknowledgement and agrees that all statements contained in this document are accurate. ABC Corporation Employee Name (Please Print) By: Date: Employee Signature Date

62 Thank You Robert M. Hale 62 Goodwin Procter Janet A. Hendrick Fisher & Phillips Staci Ketay Rotman Franczek Radelet

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