Exempt Employee fails to perform exempt duties

KMS

I have an employee who was hired as an exempt employee to do HR work and Sales Analysis. The problem is the employee didn't do any of the discretionary functions of her job and was ultimately (after 9 months) terminated for failure to complete the duties expected of her. She then claimed she is entitled to overtime because she wasn't actually doing exempt duties, only non-exempt duties.

Does anyone have any information and/or federal case law about employees losing their exempt status and subjecting the employer to liability for overtime because the employee failed to do the exempt portions of her job?

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 07-18-02 AT 02:10PM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 07-18-02 AT 02:07 PM (CST)[/font]

I think you can sit back and smile on this one! The employee was classified as exempt due to your analysis of the job and it's duties in accordance with the provisions of the Fair Labor Standards Act. The fact that she refused or for whatever other reason DID NOT meet your expectations and did not perform her assigned duties and was fired will have no bearing on her ability to now claim back overtime due, unless she can readily show that the duties of the job were not those of an exempt ee to begin with. This is just a lay opinion of course. Now if you had told her she didn't have to perform the assigned duties, the same ones that made her exempt, she might have a leg to stand on. You might make a counter claim that she owes the company all the wages it paid her while employed since she did no work. x:-) This wasn't your question; but, how was she able to stay in that position for nine months while not doing the assigned duties of the position?

Margaret Morford

There's a brand new case Ninth Circuit (pretty employee friendly Circuit) case out that Christy Reeder put on the home page of HRhero which may help you. The facts are the job was exempt, but more than 50% of the duties involved non-exempt duties. Employees quit or get fired and sue for OT. Court of Appeals agreed with the District Court and said no OT. I bet if you were real nice to Christy, she's send you the cite. Good luck. I'm with Don D. Don't give up on this one. Your facts appear to be better than those of the Ninth Circuit.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Gillian

I have never considered myself a compensation expert and I am actually happy with that, but just in case the 50% cited in this case seems a bit strange to some I'll take a shot at explaining. The case was probably a California case. Under our wage and hour regs employees are exempt if they spend more than 50% of the time primarily engaged in exempt work. If they spend more than 50% of the time performing non-exempt work, they are non-exempt. It is hard enough keeping up with our wage and hour regs so I don't spend a lot of time keeping up with the FLSA, but I believe that the FLSA definition of primarily engaged is 80%. I think that I am right and I am still glad that I'm not a compensation expert.

Pork

Get a copy of Fed Reg, Part 778, Interpretative Bulletin on Overtime Compensation. Begin reading page 5 at 778.100 at 778.103, 104, 104, 105, & 106 it appears you may find your case in their and she may have a point. It depends upon the physical work task she was accomplishing. I can not imagine my HR Assistant being exempt! Good Luck