Get access to the exclusive HR Resources you need to succeed in 2018!
Training, policies and tools to help HR prevent and respond to harassment claims.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Exemption challenges drive employer actions
As U.S. employers continue to grapple with the surge in wage and hour lawsuits, class-actions charging exempt-status misclassification—often brought by former employees—are a growing concern, finds a survey report by labor law firm Littler Mendelson P.C.
The survey, completed by HR professionals, C-suite executives and in-house attorneys, measured how employers are being affected by litigation and Department of Labor (DOL) audits focused on the classification of employees as exempt from overtime pay under wage and hour laws, including the federal Fair Labor Standards Act. Key survey findings include:
“The best defense to exemption litigation is advance preparation,” said Lee Schreter, co-chair of Littler’s wage and hour practice, in an interview with SHRM Online. “Employers can plan ahead for this type of litigation and build the necessary evidence today to defend against these claims in the future.”
Strong Evidentiary Records
“Employers often lose or settle exemption cases not because the position was actually misclassified, but because the employer cannot marshal sufficient evidence to counter the plaintiff’s self-serving efforts to downplay their decision-making responsibilities,” Schreter explained. “Employers can effectively counter ‘job deflation’ by creating contemporaneous business records of exempt duties as those tasks are performed, rather than attempting to reconstruct those activities after a lawsuit is filed.”
One of the more effective means for tracking exempt duties can be performance evaluations that ask employees to describe and assess their own performance, Schreter suggested, adding, “This type of evidence provides a written affirmation of job responsibilities in the employee’s own words and can be used to impeach any contradictory testimony.”
While respondents overwhelmingly said they understood the importance of having up-to-date job descriptions and employee performance reviews, many mentioned the ability of their job descriptions to support exempt classifications as one of their biggest concerns.
“One of the most important things to do with this information is to actually look at what the documents tell about the exemption,” said Schreter. “Pull together the documents that would be produced in the pretrial discovery process and review them. For example, I’ve seen job descriptions for a person who is supervising other people, but the document mistakenly indicated that the person did not have any subordinates. Make sure that the job descriptions actually reflect what the person is doing.”
In addition, “Do a litigation analysis that asks what lawsuits have been seen in your industry and what are the likely areas where you could expect a suit in the future,” she advised.
Former Employees Drive Class Actions
Typically, misclassification lawsuits are brought by a former employee who was treated as exempt but is claiming, in hindsight, that he or she should have been nonexempt, Schreter said. Law firms representing these plaintiffs seek to turn their cases into class-action suits.
And while settling the case may make the plaintiff happy, people working at the company may be unsatisfied with the result.
“Often, the former employee’s interest and current employees’ interest are different,” she noted. “When the company makes a decision to settle the case and reclassify exempt salaried employees as nonexempt hourly workers, some of the current exempt employees being changed to nonexempt have been very unhappy about that. It’s been my experience that employees who are exempt typically like to remain exempt.”
Stephen Miller, CEBS, is an online editor/manager for SHRM.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Save $450 off onsite member rates when you register by 2/2
SHRM’s HR Vendor Directory contains over 3,200 companies