Three simple actions to avoid an FLSA overtime lawsuit

by on March 27, 2009 · 0 Comment POSTED IN: HR Info Center

FLSA regulations are concerned with what employees do, not job titles

In a recent case, scores of employees with “Manager” and even “Vice President” in their job title sued filed an FLSA overtime lawsuit, claiming that they were non-exempt under FLSA regulations. Bank of America, the employer, agreed to pay $4.1 million settlement.

This case underscores the importance of making knowledgeable decisions when determining which, if any, jobs are exempt from FLSA overtime regulations – regardless of your line of business.

HR Info Center spoke with Gary Nece, the attorney who represented the Bank of America employees. He offered some advice for employers who want to avoid getting hit with an FLSA overtime lawsuit:

  1. Ignore job titles. Ask what an employee actually does when he comes in the office, regardless of his title or whether he’s salaried. Analyze each job description carefully. Go over it with an attorney who knows about FLSA overtime law.
  2. Audit. Periodically review each job description. Duties change over the years. And so do laws. Some jobs change from exempt to non-exempt. Some change the other way.
  3. Maintain good employee relations. People who file lawsuits may have ulterior motives, cautions Nece. And we’ve said it before in this newsletter: people don’t sue because they have a great case but because they’re angry.

The bottom line on OT: “The law provides for payment of overtime for everybody,” says Nece, unless they fall into one of three narrow exceptions under FLSA regulations: professionals (lawyers, accountants and other licensed individuals), senior executives (who determine the direction of the company) and administrators (whose primary duty is to supervise others).

Nece says that there are also various state laws and special exemptions that should be taken into account when evaluating jobs for exempt status.

Source: Gary Nece, Nece & Allen, LLP, 206-621-0619.

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