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

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Conducted on Wednesday, July 21, 2021

Recorded event now available

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Course Materials

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.


As the Biden administration institutes employment and labor policies, the issues regarding employment classification continue to be the subject of extensive lawsuits. Claims by employees challenging their classification as exempt from overtime pay under the FLSA are increasing. 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 percent 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: how to determine the 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 an 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. Whether to notify the DOL of the 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?


Ruzal, Jeffrey
Jeffrey H. Ruzal

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

Weron, Kathleen
Kathleen D. Weron

Manning Curtis Bradshaw & Bednar

Ms. Weron practices employment law, representing major national and state employers. She also has experience leading a...  |  Read More

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