By Ben Roach
While wage and hour cases are nothing new to employment law practitioners, they are growing in number and amount at stake. At a recent employment law conference there was a significant amount of discussion about wage and hour cases, and specifically misclassification cases. Those are cases in which an employee designated as salaried (exempt) under the Fair Labor Standards Act (FLSA) files suit claiming he or she was misclassified as exempt and should have been paid overtime for all hours worked in a week over 40. In such cases the key issue is whether the employee's actual job duties qualify such employee as exempt under the FLSA. The employer bears the burden to prove an exemption is appropriate.
The key document is any misclassification case is the written job description for the employee at issue. Often the employer's decision on whether to classify an employee as exempt or non-exempt is based on a written job description. The classification decision is made by human resource personnel or even legal counsel under the assumption that the job description accurately describes the duties performed by the employee. Problems arise when job descriptions are either not accurate or become out-dated as the duties of the job change over time. Plaintiffs' attorneys relate how they often come across job descriptions that appear to describe an exempt position, but discovery into the employee's actual duties in practice reveals the job descriptions to be inaccurate. Because the FLSA case will hinge on actual job duties, not those written in the job description, the actual job duties can create significant problems for employers.
There are several strategies to help alleviate this potential problem for employers. The goal of any strategy is to have an accurate and up-to-date job description. One option is to have employees either draft or review their job description annually, or when any significant change in employment occurs. Employers can have the employees sign an acknowledgement that the description accurately reflects the actual job duties. Another option to have the person drafting the job description (human resources or legal counsel) shadow employees to observe the actual duties, the time spent on each, and the relative importance of each. While these strategies may involve an investment of time and resources, the savings in avoiding liability under the FLSA and similar state laws can be substantial.