New FLSA Rules & Regs

Rockie

Have a question. We have an "Executive Assistant" and I use that term loosely who is presently qualified as an exempt level individual. It appears from the new regs that there is no possible way she can qualify for exempt level status.

She works for the CEO. The CEO's prior Executive Assistants probably did meet the qualifications as they worked on a much higher level than this individual.

My question is: what is the best way to approach this? Something like....Jane, under the new FLSA regulations that will go into effect ________, your position no longer qualifies as an exempt level position. As of ___________, you will be reclassified as an hourly individual required to punch a clock, etc. ? Would this be a proper statement to make? She will not be happy as she likes to leave the office early on a frequent basis, especially if her boss is out of town.

AJ SPHR

I listened to a webcast this morning sponsored by SHRM and the DOL person was asked a question specifically about exempt status for Executive Assistants. She said that if they work for a senior level executive for the company AND exercise some discretion (e.g. can manage executive's calendar, can determine what needs to be reviewed by executive or not), then they qualify for exempt status.

If you still believe she would not qualify, then I would explain the new FLSA regulations and that the position no longer qualifies for exempt status. As a result, she will need to track her hours worked and will be paid for hours worked and is now eligible for overtime (according to your policies). You could make her salaried non-exempt, which assumes a regular weekly or biweekly pay and exceptions to that are tracked and paid. She would not need to be considered an "hourly employee" - I often think of mfg environment using that terminology.

Hatchetman

Emphasize the overtime. I'm sure if she works for the CEO, they'll be plenty of it.

Calling her "salaried non-exmept" is a game. You'll be treating as an hourly, docking pay by the hour (or pay unit fractional)and paying FLSA overtime. The only time she would get the "salary" is if she works all 40 hours and NO overtime.

DebbieW

We had a similar situation last year. Our Administrative Assistant worked for the CEO, however, she did not qualify as an exempt employee. We switched her to salary non-exempt and she continues to have the same benefits as salary exempt employees, however, she does have to fill out a time sheet each pay period. She is paid overtime for all hours over 40, however, if she misses time during the week it must be recorded. With the salary non-exempt positions we allow employees to make up time missed for doctor's appointments, etc. if the time is made up in the same pay week.

JAthey

Actually, it is a common misconception that exempt employees don't have to work a full 40-hour workweek. It’s OK to expect exempt employees to work 40 hours each week and to discipline them when they don’t. What’s not OK is to dock their pay for the hours missed (other than in compliance with the pay docking rules set out in 29 C.F.R sec. 541.602(b)).

You might want to consider telling her that you are going to start enforcing the 40-hour workweek regardless of whether she remains exempt. But if the company agrees that she really has "earned" the right to work reduced hours, you could maintain the status quo by converting her to nonexempt status, officially assigning her a 35 hour workweek (or some other number of reduced hours), and raising her hourly pay to equal what she was making as a salaried employee. You're already paying her that much to work a reduced week, anyway.

Or, as you said, you could reassign duties and responsibilities to preserve her exempt status.

Julie Athey, Author
"Overtime Revisited: The DOL's Final Regulations"
"Defusing the Overtime Bomb: How to Comply with the FLSA"

njjel

Under the new FLSA regs it states that paralegals would be classified as exempt. However our paralegals are unionized and the contract states they receive time and one half over 40 hours. From what I've read I'm think then that they still receive the o/T even though they are exempt?

Don D

Yes. The contract rules. Employee Handbooks and the FLSA are Elmer's Glue. Contracts are Super Glue.