Worker Misclassification: Challenges of Determining Exempt vs. Non-Exempt Employees
Conducting Self-Audits, Identifying Vulnerabilities, Correcting Errors, and Minimizing Liability Under FLSA and State Law
Recording of a 90-minute CLE video webinar with Q&A
This CLE course 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.
Outline
- Current legal trends, including the status of the "salary basis" rule and salary level under the FLSA and state laws
- Positions most vulnerable for FLSA and state claims: how to determine the correct classification
- Clerical and administrative support personnel
- Assistant managers, supervisors, and team leaders without sufficient staff
- IT workers
- Sales staff
- Self-audit strategies
- Who should conduct an audit?
- Review pay practices and policies: overtime, bonuses, etc.
- Review job descriptions versus what employees actually do
- Review new positions added after a merger or acquisition
- Documenting the audit
- Correcting errors and limiting liability exposure
- Establish compliance program
- Reclassify positions to protect exemptions
- Consider voluntarily paying back wages
- Whether to notify the DOL of the error
- Prepare for state or federal regulatory inquiry into classification practices
Benefits
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?
Faculty
Jeffrey H. Ruzal
Member
Epstein Becker & Green
Mr. Ruzal is a member of the firm's Wage and Hour Group and Co-Leads the firm’s Hospitality Strategic... | Read More
Mr. Ruzal is a member of the firm's Wage and Hour Group and Co-Leads the firm’s Hospitality Strategic Industry Group. He represents clients in such diverse industries as hospitality, financial services, retail, healthcare and technology. Mr. Ruzal litigates class actions and collective actions involving a variety of employment and wage-hour issues; provides counsel on, and defends against, federal and state department of labor investigations and enforcement actions; and provides advice and management training on wage and hour compliance, reductions in force, discrimination, and other employment issues. Mr. Ruzal is a frequent speaker and author on a variety of wage and hour topics.
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Kathleen D. Weron
Partner
Manning Curtis Bradshaw & Bednar
Ms. Weron practices employment law, representing major national and state employers. She also has experience leading a... | Read More
Ms. Weron practices employment law, representing major national and state employers. She also has experience leading a nonprofit organization and her practice includes advising non-profit organizations. Ms. Weron is a well-known speaker, author and experienced trainer. She has an extensive employment counseling practice that includes comprehensive corporate harassment prevention training and executive training for creating a diverse, inclusive and professional work environment and culture, as well as general employment training and human resources counseling. Ms. Weron offers an array of employment services to her clients to ensure best practices and promote productive work environments, including flat-fee services such as an initial employment audit, drafting employee handbooks, workplace policies, employment contracts, non-compete and severance agreements. Ms. Weron also provides a modern approach to sexual harassment prevention training that includes an executive session to educate and empower leaders to create a cultural shift in the workplace.
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