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 on exemption misclassification issues, 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 such as ensuring businesses have appropriate safe harbor policies.
- 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
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 with a focus on compliance with the duties and salary basis tests--and protect the company from future liability?
- What are the legal risks of voluntarily paying back wages to misclassified employees? If such payments are made, how far should an employer go back and should liquidated damages be included?
- Should employers take the initiative to notify the Department of Labor of classification errors discovered during self-audits? As private FLSA releases are generally not enforceable, what other measures can an employer take to minimize exposure against exemption claims?
John S. Ho
Co-Chair, OSHA-Workplace Safety Practice
Mr. Ho exclusively represents employers on all labor and employment matters and regularly handles wage and hour matters... | Read More
Mr. Ho exclusively represents employers on all labor and employment matters and regularly handles wage and hour matters involving federal and state laws, such as the Fair Labor Standards Act, the New York Labor Law, New York’s Miscellaneous Industries Wage Order, and New York’s Hospitality Wage Order. He also routinely works with OSHA, in addition to handling discrimination claims, ADA public accommodation cases, drafting employee handbook policies and procedures and employment contracts, conducting workplace investigations, and arbitrations. Mr. Ho has defended a wide range of employers against hybrid class and collective actions under the FLSA and the New York Labor Law. He also frequently assists companies with internal wage and hour audits, as well as Department of Labor audits, including those generated by misclassification of independent contractors in New York State unemployment filings. Mr. Ho is a former prosecutor with the U.S. Department of Labor, Office of the Solicitor and is a founding member of the Wage and Hour Defense Institute.Close
C. Edward Langhammer, Jr.
Mr. Langhammer has over 35 years’ experience representing clients in all aspects of employment law and related... | Read More
Mr. Langhammer has over 35 years’ experience representing clients in all aspects of employment law and related litigation, including wage and hour class actions, Private Attorneys General Act (PAGA) claims, Fair Credit Reporting Act (FCRA) claims, and suits involving wrongful termination, discrimination, harassment, and retaliation, breach of contract and unfair business practices, and misappropriation of company trade secrets and proprietary information. He also counsels clients on a wide range of employment law matters, conducts wage and hour compliance audits and reviews, drafts employment policies and procedures, and provides human resources training. Ed represents corporate and business organizations, as well as nonprofit and charitable entities.Close