Exempt or Non-Exempt? Overcoming the Latest Employee Misclassification Challenges

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

A live 90-minute CLE webinar with interactive Q&A

Tuesday, August 22, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, July 28, 2017

This CLE webinar will guide employment counsel and employers in identifying positions that are most at risk for misclassification under the Fair Labor Standards Act (FLSA) and state law (particularly under the common “white collar” exemptions), conducting self audits, and implementing measures to correct misclassification errors to minimize liability exposure. The panel will also provide an update regarding the status of the Final Rule concerning exempt salary level under the FLSA.


Claims by employees challenging their classification as exempt from overtime pay under the FLSA remain steady. 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.

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, including the status of the “salary basis” rule and salary level under the FLSA and state laws
  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
  5. Establish compliance program
  6. Reclassify positions to protect exemptions
  7. Consider voluntarily paying back wages
  8. Should you notify the DOL of error?
  9. 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?


Brent E. Pelton, Partner
Pelton Graham, New York

Mr. Pelton's practice focuses on representing employees alleging violations of the Fair Labor Standards Act (“FLSA”) and its state law counterparts, employees who have been subject to sexual harassment and other forms of workplace discrimination. He has served as lead counsel or co-lead counsel on FLSA collective actions and other class actions against some of the largest companies in the country.

Noel P. Tripp, Principal
Jackson Lewis, Melville, N.Y.

Mr. Tripp practices exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principal focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws.

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This webinar is eligible for at least 1.5 general CLE credits.

CLE credits are not available for PR.

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CLE On-Demand Video $247.00
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