Exempt or Non-Exempt? Overcoming Latest Employee Misclassification Challenges

Conducting Self-Audits, Identifying Vulnerabilities, Correcting Errors, and Minimizing Liability Under FLSA and State Law

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, June 10, 2015

Recorded event now available

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Program Materials

This CLE webinar will guide counsel in identifying employment positions that are most at risk for misclassification under the Fair Labor Standards Act (FLSA) and state law, advising employers on conducting self audits, and implementing measures to correct misclassification errors to minimize liability exposure.


Claims by employees challenging their classification as exempt from overtime pay under the FLSA have increased significantly in recent years. Some federal suits have resulted in multi-million dollar verdicts. State lawsuits are also on the rise, and state wage and hour laws are often more employee friendly than the FLSA.

There has been a significant rise in FLSA class action and collective lawsuits in the last 10 years, with many of them founded on allegations of misclassification. The U.S. Department of Labor reports that approximately 70% of employers are out of compliance with the FLSA’s classification requirements. To avoid potential claims, employment counsel must advise employers to reexamine and, where necessary, adjust their worker classification practices.

Listen as our authoritative panel of employment attorneys examines the types of positions most at risk for misclassification as exempt, explains best practices for self audits, and suggests measures employers should take to correct classification errors and limit liability exposure.



  1. Current legal trends
  2. Positions most vulnerable for FLSA and state claims—and how to determine correct classification
    1. Clerical and administrative support personnel
    2. Assistant managers, supervisors and team leaders without sufficient staff
    3. IT workers
    4. Sales staff
  3. Self-audit strategies
    1. Who should conduct audit?
    2. Review pay practices and policies—overtime, bonuses, etc.
    3. Review job descriptions versus what employees actually do
    4. Review new positions added after a merger or acquisition
    5. Documenting the audit
  4. Correcting errors and limiting liability exposure
    1. Establish compliance program
    2. Reclassify positions to protect exemptions
    3. Consider voluntarily paying back wages
    4. Should you notify the DOL of error?
    5. Prepare for state or federal regulatory inquiry into classification practices


The panel will review these and other key issues:

  • Which positions are most often misclassified as exempt—and how can employers and their counsel best determine the appropriate classification for such positions?
  • What self-audit approaches are effective to identify and correct errors—and protect the company from future liability?
  • What are the legal risks of voluntarily paying back wages to misclassified employees?
  • Should employers take the initiative to notify the Department of Labor of classification errors discovered during self audits?


Pelton, Brent
Brent E. Pelton

Pelton Graham

Mr. Pelton's practice focuses on representing employees alleging violations of the Fair Labor Standards Act...  |  Read More

Tabakman, Mark
Mark E. Tabakman

Fox Rothschild

Mr. Tabakman handles union and non-union matters for employers nationwide and concentrates in wage-hour law. He...  |  Read More

Tripp, Noel
Noel P. Tripp

Jackson Lewis

Mr. Tripp practices exclusively in employment law and has been involved in matters pending before federal and state...  |  Read More

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