FLSA Exemptions: Emerging Class Action Threat

Navigating the Complexities of Executive, Professional and Administrative Exemptions

Wage and hour suits continue to lead all class action filings

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

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Conducted on Thursday, November 19, 2009

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Course Materials

This seminar will provide a comprehensive analysis of class action litigation regarding FLSA exemptions and the most frequently litigated classifications. The panel will outline best practices for counsel to avoid misclassification and employment practices that can jeopardize the exemption.


Employment claims now constitute the largest group of class action filings—almost 48% of all class actions—and the majority are wage and hour claims. The FLSA exemption categories are a fertile ground for litigation and are particularly suited for class action lawsuits.

Many white collar positions must fall within the administrative exemption, by far the toughest and grayest category. The administrative exemption has been challenged for positions in a wide variety of industries, including financial services, insurance, retail and the service industry.

Companies must also avoid employment practices that jeopardize otherwise legitimate exempt classifications. Pay reductions, furloughs, deductions from wages and docking time for absences all present thorny issues that can cause the loss of the exemption for an entire category of employees.

Listen as our authoritative panel of employment attorneys provides an in-depth analysis of the murky FLSA exemptions and the position classifications and industries most likely to be challenged in class action litigation. Learn what counsel to employers must do to ensure that exempt classifications withstand legal scrutiny and what can jeopardize the exemption.



  1. Litigation trends regarding misclassification of exemptions
    1. Executive
      1. Management of enterprise, department or subdivision
      2. Authority to hire and fire
    2. Professional
    3. Administrative
      1. Production work distinction
      2. Salary basis—effect of commission payments
      3. Discretion and independent judgment v. skill and experience
  2. At risk positions and industries
    1. Financial services
    2. Insurance
    3. Retail
    4. Restaurant
    5. Other services
  3. Maintaining the exemption
    1. Furloughs
    2. Docking time for absences
    3. Deductions from wages


The panel will review these and other key questions:

  • How have courts interpreted the "discretion" and "independent judgment" factors of the administrative exemption?
  • Why is the financial services industry a target for wage and hour class action lawsuits, and what are the most common challenges to exemptions in this industry?
  • How can an employer reduce exempt employee's salaries in response to economic hardship without running afoul of the "salary basis" test?


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

Douglas Weiner
Douglas Weiner

Senior Trial Counsel
Epstein Becker & Green

He has 30 years of federal wage and hour litigation experience. Prior to joining the firm, he was Senior Trial Attorney...  |  Read More

Angelo Spinola
Angelo Spinola

Littler Mendelson

He regularly represents employers nationwide in collective, class, and hybrid actions under the Fair Labor Standards...  |  Read More

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