Can we change an exempt employee to nonexempt status to cure an attendance problem?

Yes. Even when a position qualifies for exempt status an employer may prospectively change the status to nonexempt to help cure an attendance problem. As with all nonexempt positions, however, the employer will need to track the hours worked and pay overtime as appropriate.

All positions are nonexempt by default, and nothing prohibits an employer from classifying a position (or one employee in that position) as nonexempt even when it meets the criteria for an exemption. Remember, being nonexempt from the payment of overtime is considered to be more generous by the law than being exempt, as exempt positions are being denied overtime pay.

Also, the U.S. Department of Labor has opined that classifying one position as nonexempt does not affect the exempt status of other positions with the same job title. However, employers should be very sure that those similar exempt positions actually meet the criteria for exemption, as having different classifications for similar positions may raise red flags during audits.

Employers choosing to change an exempt employee to nonexempt must do so with the intention of the change being long term or permanent. A week by week change or frequent changes back and forth from exempt to nonexempt status may indicate the employer is trying to avoid overtime pay. Such status changes should be few, and the employer should document the reasons for the change.