Model Job Descriptions for an Overtime-Exempt Account Manager & an Overtime-Exempt Recruiter Prepared by: William S. Josey, Esq. William S. Josey, LLC willisj@aol.com 813-390-6045 Commissioned by: Mark B. Roberts Chief Executive Officer TechServe Alliance 1420 King Street, Suite 610 Alexandria, VA 22314 703-838-2050 Web: www.techservealliance.org Copyright TechServe Alliance and William S. Josey, 2016. All Rights Reserved. Redistribution to individuals not employed by a TechServe Alliance member company in good-standing is strictly prohibited. The following information is provided by TechServe Alliance to its members for informational purposes only and should not be relied upon as legal advice. Model job descriptions are generic by nature and may not fit your particular business model or practices. It is the Account Manager s or Recruiter s actual job duties, not the paper job descriptions, that will determine whether he or she is exempt. Also, state laws may be stricter that the FLSA. It is strongly recommended that you consult with your own attorney to ensure that your pay practices are compliant with all laws and regulations. Job Description of an Overtime-Exempt Account Manager Many employers are surprised to learn that there is no inside sales overtime exemption under the Fair Labor Standards Act for business to business sales employees. The best way to ensure that your sales-focused Account Managers, a/k/a Account Executives, are exempt from overtime pay under the fair Labor Standards Act is to classify them as Outside Salespersons and ensure that they are, in fact, regularly outside of the office visiting clients at their locations to sell your firms services or obtain orders for those services. There is no firm definition of regularly, but many advisors would suggest at least weekly and, ideally, several times a week. This does not mean that outside sales personnel cannot perform work in the office. They can spend a considerable amount of time in the office prospecting, handling account issues and performing related duties, but their primary obligation should be arranging and regularly making face to face sales calls at TechServe Alliance October 2016 1
the locations of clients or prospective clients. Working remotely from a home office is not considered the same as being out of the office calling on clients. In some cases, depending on the Account Manager s duties, the administrative exemption could potentially apply, so long as the salary threshold is met, but this is a very fact-sensitive issue, and it should not be automatically assumed that a sales-oriented Account Manager is eligible for the administrative exemption. The following description incorporates elements of both the outside sales and the potentially exempt administrative functions such as marketing/promoting the employer s services. JOB DESCRIPTION Account Manager SUMMARY The Account Manager is responsible for marketing the firm s services, driving sales and managing the day-to-day operations with the existing client base. The successful candidate will have strong sales skills as well as a thorough understanding of contingent workforce practices, issues and trends. RESPONSIBILITIES Research and identify prospective clients through referrals, networking, social media, internet research, sales leads and direct contact. Schedule and conduct client and prospective client meetings to make sales and obtain orders. Prepare and present persuasive service proposals. Negotiate billing rates and contract terms. Collaborate with colleagues to facilitate the placement process, which may include presentation of candidates, interview scheduling, client preparation and debrief and compensation negotiation. Manage relationships throughout the assignment. Anticipate and take appropriate action to market future opportunities at clients. Continuously work to expand the client base through ongoing marketing and promotional activities. Connect with candidates, colleagues and clients on a regular basis to develop and maintain key relationships. Stay abreast of current staffing trends and recommend creative strategies to facilitate new business development and superior service to existing clients. Proactively address and resolve issues arising with clients, including using sound judgement to determine when to seek appropriate HR, legal or other support. Utilize an understanding of relevant employment laws to identify and address potential unlawful employment practices that may arise in connection with a placement or assignment. REQUIREMENTS BA/BS degree preferred. At least 2 years account management experience. Ability to develop customer relationship management, consultative and negotiation skills. Proven organizational skills with attention to detail and the ability to self-manage, prioritize initiatives and work well in a team environment. Superior communication and presentation skills including strong negotiation & persuasion skills. TechServe Alliance October 2016 2
Job Description of an Overtime-Exempt Recruiter When compensating recruiters, staffing firms frequently utilize the administrative exemption under the Fair Labor Standards Act to avoid overtime pay complexities and to facilitate the use of incentive compensation, typically in the form of commissions. In addition to a minimum guaranteed salary, the administrative exemption requires the employee to perform relatively sophisticated work, as defined by the Department of Labor s duties test: The employee s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Primary duty means the principal, main, major or most important duty that the employee performs. The exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. An exempt recruiter s job description will typically contain a combination of both exempt and nonexempt duties, but the primary duties must be those that fit the above definitions. The Matching Function The single most important duty of an overtime-exempt recruiter is the matching function, that is, matching a candidate to the client s needs and requirements. In an ideal world, this would always involve presenting a single matched candidate to the client. In the real world, hiring managers frequently want to see more than one candidate on a particular requisition. The presentation of more than one candidate to the client will not necessarily eliminate the exemption if the recruiter uses his or her judgment to rank the candidates, or advocates a particular candidate over the others. However, there is a difference between matching and merely sourcing or screening candidates. Merely sourcing or screening candidates, without some degree of evaluation, matching, and/or ranking, is not likely to involve the exercise of discretion and independent judgment required to maintain the exemption from overtime. Examples of Recruiter Duties that Support the Administrative Exemption Evaluate candidates and match their skills and strengths with clients requirements Develop and implement recruiting strategies designed to identify and attract qualified candidates Determine applicant qualifications by interviewing applicants, analyzing responses, contacting references, and comparing candidate qualifications to job requirements Execute sourcing and recruiting strategies to identify and attract qualified candidates, and then match them to opportunities with clients TechServe Alliance October 2016 3
Maintain an understanding of the industry and skill sets served, including trends and new developments Collaborate and consult with the client or client-facing colleagues to fully understand the client s needs, culture, and hiring objectives Negotiate wages, terms and conditions of employment with candidates Guide and advise candidates thorough the recruiting process, the interview process and salary negotiation Oversee contract employees while on assignment. Assess and investigate personnel problems; administer performance counseling and coaching when deemed appropriate; timely escalate issues to appropriate resource and/or level; provide recommendations with regard to disciplinary measures when necessary Utilize an understanding of relevant employment laws to avoid unlawful employment practices during the recruiting process Develop and maintain positive and trusting relationships with candidates Manage client expectations appropriately Effectively utilizes strong communication, interpersonal, consultative and negotiating skills Counsel candidates in resume preparation, interviewing, and career planning The administrative exemption can be a slippery concept, and there is no certainty that the Department of Labor or courts will find your recruiters to be exempt. However, the above examples of recruiter duties tend to involve the required judgement and discretion, and can be combined with other, less judgmental tasks (such as record keeping and background checks) in the final description, so long as the recruiter s main function involves judgmental tasks like those listed above, particularly the matching function. Below is an example of an recruiter job description containing duties that tend to fit the administrative exemption. JOB DESCRIPTION - RECRUITER SUMMARY Develops and executes recruiting strategies to identify, qualify, attract, and match candidates meeting client needs and requirements. RESPONSIBILITIES Develop an understanding of client requirements, including consultation with the client or client-facing colleagues to fully understand the client s needs, culture, and hiring objectives. Maintain an understanding of the industry and skill sets served, including trends and new developments. Develop and implement recruiting strategies designed to identify and attract qualified candidates. Evaluate candidates, including interviews, and match their skills and strengths with clients job requirements. Creatively utilize networking, employee referrals, job boards, social media, ad searches, career fairs, internet research and direct contact to locate qualified candidates meeting client requirements. Facilitate/mediate the offer process, including salary negotiations, benefits and other terms and conditions of employment. Guide and advise candidates thorough the process. TechServe Alliance October 2016 4
Oversee contract employees while on assignment. Assess and investigate personnel problems; administer performance counseling and coaching when deemed appropriate; timely escalate issues to appropriate resource and/or level; provide recommendations with regard to disciplinary measures when necessary. Counsel candidates in resume preparation, interviewing, and career planning. Develop and maintain long-term relationships with candidates. Utilize an understanding of relevant employment laws to avoid unlawful employment practices during the recruiting process. Effectively utilize company systems to perform duties and maintain records in accordance policies and procedures. REQUIREMENTS BA/BS degree preferred. At least 2 years recruiting experience. Ability to develop customer relationship management, consultative and negotiation skills. Proven organizational skills with attention to detail and the ability to self-manage, prioritize initiatives and work well in a team environment with competing demands and tight deadlines. Excellent verbal and written communication skills with an emphasis on tact and diplomacy. Strong internet research skills. Proficiency in MS office, including Word and Excel. Ability to understand the disciplines served. DISCLAMER: This is not legal advice you should consult your own counsel in connection with any wage/hour matters. These materials are presented solely for educational purposes, and any use of the information provided is at the user s sole risk. The job description is somewhat generic and may not fit your particular business model or practices. It is the Recruiter s actual job duties, not the paper job description, that will determine whether he or she is exempt. Also, state laws may be stricter that the FLSA, and you should consult your own attorney to ensure that your pay practices are compliant with all laws and regulations. TechServe Alliance October 2016 5