Exempt or Non-Exempt? Employee Misclassification Challenges

May 8, 2012

1:00 p.m. - 2:30 p.m.

This CLE webinar will guide employment counsel in identifying the positions that are most at risk for misclassification under the FLSA and state law, provide best practices for advising employers conducting self audits, and outline effective measures to correct misclassification errors and minimize liability exposure.

Claims by employees challenging their classification as exempt from overtime pay under the FLSA increased significantly in recent years. Some federal suits have resulted in multimillion dollar verdicts. State lawsuits are also on the rise, and state wage and hour laws are often more employee friendly.

There has also, within the last ten years, been a geometric rise in class action and collective lawsuits, with many of them founded on allegations of wholesale misclassification.

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 panel of employment law 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.

I.Current legal trends
II.Positions most vulnerable for FLSA and state claims—and how to determine correct classification
A.Clerical and administrative support personnel
B.Assistant managers, supervisors and team leaders without sufficient staff
C.IT workers
D.Sales staff
III.Self-audit strategies
A.Who should conduct audit?
B.Review pay practices and policies—overtime, bonuses, etc.
C.Review job descriptions versus what employees actually do
D.Review new positions added after a merger or acquisition
E.Documenting the audit
IV.Correcting errors and limiting liability exposure
A.Establish compliance program
B.Reclassify positions to protect exemptions
C.Consider voluntarily paying back wages
D.Should you notify the DOL of error?
E.Prepare for state or federal regulatory inquiry into classification practices

The panel will review these and other key questions:
•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?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Mark E. Tabakman, Partner
Fox Rothschild LLP, Roseland, NJ

Brent E. Pelton, Esq.,
Pelton & Associates, New York

Christine W. Johnston, Partner
K&L Gates, Boston

Daniel J. McCoy, Partner
Fenwick & West, Mountain View, Calif.


Please click here for more information and to register.