3 Ways to Get Employees’ Buy-In on Reclassification

 

Allen Smith, J.D. By Allen Smith, J.D. January 7, 2020
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​Workers who are newly reclassified as nonexempt initially may dislike their new classification. They may think they were demoted, no longer can work the hours they need to get the job done or have lost work flexibility. Employers can counter these objections with clear communications about the advantages of nonexempt status—but don't promise the impossible. Off-the-clock work, for example, cannot be permitted.

"Many exempt employees enjoy the status, prestige, and both formal and informal perks often available to exempt employees, so when they are reclassified, they wonder if they've been deemed less important to the employer," said Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich. "Employers have to assure them that they're no less valuable or important but rather that the change is due to a technical change in the law."

Adjusting to the reclassification can take a while, said Myrna Maysonet, an attorney with Greenspoon Marder in Orlando, Fla. Sitting down and talking with employees about the change can help diminish the sting.

Reclassification Is Not a Demotion

Persuading an employee that reclassification to nonexempt is not a demotion "is a real challenge, but it can be done," said Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City.

Point out that employees have the chance to earn more than they previously did by working approved overtime, said Jeremy Mittman, an attorney with Mitchell Silberberg & Knupp in Los Angeles.

"If the employer limits the amount of overtime, then the employer has to determine how it will address this practice," said Anna Maria Tejada, an attorney with Saul Ewing Arnstein & Lehr in Newark, N.J. "The employer may need to reassess the type and amount of work provided and the required timelines."

If the reclassification affects a similarly situated group, a reclassified worker may not feel singled out, May noted.

Employers should tell newly nonexempt workers their duties and reporting structure are unchanged, she added. "Also, salaries can remain unchanged—being nonexempt doesn't mean they must be paid on an hourly basis."

It's best to avoid policies that provide more benefits to exempt employees than nonexempt workers, May said.

More Time Off

Reclassification may mean more time off. Workers may have better work/life balance because they will not feel pressured to regularly work late, according to J. J. Keller & Associates, which provides compliance products and is based in Neenah, Wis.

Employers that want to avoid increased overtime costs may ask reclassified employees to work fewer hours than they previously had, observed Jon Klinghoffer, an attorney with Goldberg Kohn in Chicago.

Workers may feel they have to do the same job tasks in less time.

[SHRM members-only toolkit: Understanding Overtime Exemptions Under the FLSA]

Some Flexibility May Remain

Nonexempt employees often are required to work set schedules so the employer can manage their work hours, including overtime hours, said Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C. But that's not the case for all employers. According to J.J. Keller, workers will have to log their worktime but they might have some flexibility as to when they begin and end their workdays, or how that 40 hours is broken up over the course of the workweek, it notes.

The employer might emphasize scheduling flexibility with its nonexempt employees. If a nonexempt worker has a 9 a.m. to 6 p.m. schedule with an hour-long lunch but a major project requires additional time on a given day, the employee may be able to change his or her hours for a given day to complete the assignment, Tejada said.

Klinghoffer said that if nonexempt workers make up missed hours, they must do so in the same workweek. Employees cannot make up hours worked from a previous workweek without those made-up hours being counted toward the current workweek's 40 hours for overtime purposes, he explained.

Many jurisdictions have, in addition to the Family and Medical Leave Act, protections for employees to take time off for sick leave, family leave and school-related obligations, observed Margaret Ferrero, vice president, assistant general counsel at ADP in Parsipanny, N.J.

No Off-the-Clock Work

Nonexempt employees should be told that off-the-clock work is not permitted. Make sure that policy is in writing, as well, Mittman said.

Employers can spin their off-the-clock policies as a positive, May said. For example, they can tell workers, "we don't want nonexempt employees tethered to their phones and working all of the time. Time off is time off."

Supervisors shouldn't e-mail nonexempt employees before or after hours and expect a response. "If a response is expected, then the employer may be agreeing to off-the-clock work, which must be compensated," Tejada said.

Employees may resent having to account for when they start and end work and when they take meal breaks. Employers can reduce the negative repercussions of tracking time by making the process as automated as possible, said Laura O'Donnell, an attorney with Haynes and Boone in San Antonio. "Getting employee buy-in may require some investment by the employer," she said.

O'Donnell added that workers' buy-in is important because "negative employee morale will lead to decreased productivity, increased management time addressing issues and even litigation."

[Visit SHRM's resource page on the FLSA Overtime Rule.]

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