FLSA New Regs- Classifying Exempt EE's

cselib

Hello,
Can you initially classify an employee as Non Exempt if they meet all of the requirements of Exemption except for the Salary requirement, and then have them become Exempt when they reach that point in the salary scale?

Shadowfax

Sure, you can pay an otherwise exempt position an hourly wage plus o/t.

pork1

CSELIB: Welcome to the FORUM! EXEMPT VS NON-EXEMPT STATUS SHOULD NOT BE BASED PURLY ON SALARY INFORMATION. The first test is the salary information exceeding $455.00 a week regardless of any discussions of how many hours a work week will this person be working. Then comes the all majic question what will someone be doing while they are earning a minimum of $455.00 per week or more. It is the physical task of doing that sets the justification of placing someone on an EXEMPT STATUS. Which purely means you will not have to consider this person for overtime payment, and you can expect the employee to work as he/she may need to work regardless of record keeping of hours worked. there is no need to keep hours of work for the EXEMPT employee will be paid the same salary each week regardless of the hours worked.

You can establish a hourly rate of pay and pay overtime for anyone regardless of the AMOUNT OF MONEY PAID (over minimum wage) OR THE DUTIES ASSIGNED. However, you can't go in reverse and establish a EXEMPT status position and then start keeping time on that individual, for you are establishing precedence for a NON_EXEMPT position and system of pay requiring overtime calculations and payment in kind.

Hope this helps!

PORK.

cselib

Thank You- The individuals in question are currently classified as exempt, and their duties justify such classification, but the salary scale is such that it does not start at the correct pay rate. It has been suggested by our Executive Director that we alter the exempt status for those employees who fall just under the salary line, and still classify those individuals who fall above the salary line as exempt staff. Once the Employees have been here long enough to make the Magic Dollar amount, they would then be classified as exempt. My thinking was that if you classify a position as exempt, that position should be exempt, regardless of the employee's tenure at the company. Much of this is a question of Vacation time as well, because Exempt staff recieves an extra week of paid vacation, and overtime is not much of an issue because we have a 35 hour work week, and not too many individuals work beyond that.

Thanks again,
Cheryl

System

cselib,

In my humble, nonlawyer opinion, your exec dir is right. All that matters is whether an employee meets the exempt definition. If he suddenly meets the definition next week, you can immediately start treating him as exempt, but you don't have to.

Good luck!

James Sokolowski
HRhero.com

WO

Cheryl, I find myself in the same position. Our public health dept employs a staff of several nurses. Many of these nurses refuse to work full time, requiring us to hire some nurses for one of two days per week. Thus although they meet the exempt requirements, they do not meet the salary of $455/week working only one day per week.

On 8/23, I am moving them to non-exempt until they hit the magic number, (higher within their pay range)and will then move them back to exempt status. I could give them all pay increases but wouldn't be fair to the other nurses who worked their way through the pay range.

This appears to be the only change I will have to make due to the new regs.

Shadowfax

If I read PORK1's message correctly - I disagree in part. Not only can you track time on exempts, you absolutely should. You just can't pay them based on the hours worked, if you do then you destroy the exemption. I've said it before and I stand by it: every exempt working in your facility knows exactly how many hours they have put in for the last 10 years. If DOL says you misclassified, or if you discipline the ee or he leaves, and there is the slightest argument over his classification, if you have not tracked his time, you will regret it.