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Exempt or Non‐Exempt? Latest Employee p p p y Misclassification Challenges

Identifying Vulnerabilities and Minimizing Liability Under FLSA and State Law

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNES DAY, MARCH 20, 2013

Today’s faculty features:

Mark E. Tabakman, Partner, Fox Rothschild, Roseland, N.J. Brent E. Pelton, Esq., Pelton & Associates, New Y

• rk

Daniel J. McCoy, Partner, Fenwick & West, Mountain View, Calif. Daniel J. McCoy, Partner, Fenwick & West, Mountain View, Calif.

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EXEMPT OR NON-EXEMPT? EMPLOYEE MISCLASSIFICATION CHALLENGES CHALLENGES

Positions Most Vulnerable to FLSA and State Claims FLSA and State Claims

Mark Tabakman, Esq. Fox Rothschild LLP mtabakman@foxrothschild.com taba a @ o

• t sc

d co http://wagehourlaw.foxrothschild.com March 20, 3013

FLSA EXEMPTIONS: EMERGING CLASS ACTION THREAT EMERGING CLASS ACTION THREAT

AT-RISK POSITIONS

• Financial Services Industry
• I T W

k /C t P

• I.T. Workers/Computer Programmers
• Assistant Managers
• Clerical/Administrative Employees
• Clerical/Administrative Employees
• Sales Staff

5

FLSA SECTION 13(a)(1), GENERALLY

• Section 13(a)(1) of the FLSA provides an exemption from both

minimum wage and overtime pay for individuals employed as bona minimum wage and overtime pay for individuals employed as bona fide executive, administrative, professional, and outside sales

• employees. Sections 13(a)(1) and 13(a)(17) also exempt certain

computer employees.

T lif f ti l ll t t t i t t – To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. – Job titles do not determine exempt status. In order for an exemption to apply an employee’s specific job duties – In order for an exemption to apply, an employee s specific job duties and salary must meet all the requirements of the DOL’s regulations.

6

ASSISTANT MANAGERS

• To qualify for the executive employee exemption, all of the following tests

must be met: must be met:

– The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week; – The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; – The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and – The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must p y g p y be given particular weight. 7

ASSISTANT MANAGERS (cnt’d)

• The duties and responsibilities of assistant managers vary and may be

determined by the industry in which the assistant manager works the size determined by the industry in which the assistant manager works, the size

• f the business and/or the structure of the business (e.g., single

establishment versus multi-establishment). An assistant manager whose primary duties or functions are ordinary production work or routine, recurrent or repetitive tasks is not exempt under the Regulations, Part 541. p p g ,

• However, to determine whether a worker employed as an assistant

manager who regularly supervises the work of others meets the duties tests for exemption from the FLSA's minimum wage and overtime pay requirements, begin with the Executive Employee analysis.

8

ASSISTANT MANAGERS (cnt’d)

• The Assistant Manager classification has always been problematic from an FLSA exemption

The Assistant Manager classification has always been problematic from an FLSA exemption

• perspective. These employees must be endowed with some actual/real authority relating to hiring

and firing as well as other employee terms and condition or the employer will be an easy target for a class action suit. Moreover, they must supervise and manage the majority of the time.

– This becomes a fine line that often gets crossed in the hectic world of store operations, where the job has to get done.

Plaintiffs claiming to be misclassified as exempt Assistant Managers often assert that they were

• Plaintiffs claiming to be misclassified as exempt Assistant Managers often assert that they were

compelled to perform non-exempt duties a disproportionate amount of their work day and this amount of rank-and-file work destroyed the exemption.

• On the Assistant Manager issue, the best defense is that these workers are truly exempt. The

second best defense is that the class certification motion must fail because individualized assessment of each Assistant Manager is needed because some might have exercised more assessment of each Assistant Manager is needed because some might have exercised more managerial duties than others. The need for individual scrutiny is the antithesis of a class action . 9

ADMINISTRATIVE EMPLOYEE EXEMPTION

• To qualify for the administrative employee exemption, all of the

f ll i b following tests must be met:

– The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; – The employee’s primary duty must be the performance of office or non- The employee s primary duty must be the performance of office or non manual work directly related to the management or general business

• perations of the employer or the employer’s customers; and

– The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. independent judgment with respect to matters of significance.

10

PROFESSIONAL EMPLOYEE EXEMPTION

• To qualify for the professional employee exemption,

q y p p y p , following must be met:

– The employee must be compensated on a salary or fee basis at a rate of not less than $455 per week exclusive of board a rate of not less than $455 per week, exclusive of board, lodging, or other facilities; and – Whose primary duty is the performance of work:

• Requiring knowledge of an advanced type in a field of science or
• Requiring knowledge of an advanced type in a field of science or

learning customarily acquired by a prolonged course of specialized intellectual instruction; or

• Requiring invention, imagination, originality or talent in a recognized

q g , g , g y g field of artistic or creative endeavor.

11

FINANCIAL SERVICES

• Over the last several years there has been a

Over the last several years there has been a torrent of litigation concerning the exempt status

• f positions in the financial services industry

(mortgage brokers, originators, etc.).

12

FINANCIAL SERVICES (cont’d)

• Prior to the DOL’s issuance of its 2010 White Paper (guidance

) h l d d statement) on the matter, employees were deemed exempt as administrative if their duties included work such as collecting and analyzing information regarding a customer’s income, assets, investments, or debts; determining which financial products best investments, or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of financial products; and servicing, promoting, and marketing the l ’ fi i l d t employer’s financial products.

13

FINANCIAL SERVICES (cont’d)

• Per DOL’s 2010 White Paper, except in certain circumstances, mortgage

loan officers will not qualify for the administrative exemption under the Fair loan officers will not qualify for the administrative exemption under the Fair Labor Standards Act.

• If mortgage loan officers perform supervisory duties, they may still fall under

the executive exemption, but the most commonly urged exemption for them, i e administrative is now foreclosed i.e. administrative, is now foreclosed.

• The DOL concluded that “mortgage loan officers typically have the primary

duty of making sales on behalf of their employer; as such, their primary duty is not directly related to the management or general business operations of their employer or their employer’s customers.” p y p y

– Mortgage loan officers will not qualify for the administrative exemption because their primary duty is production work, i.e. sales.

14

Validity of the USDOL 2010 White P L Offi Ch ll d Paper on Loan Officers Challenged

• Mortgage Bankers Association v. Solis (2012)

g g ( ) – Before the Court of Appeals for the District of Columbia Circuit. – MBA argues that the agency violated the Administrative Procedure Act and a long line

• f cases holding that the DOL (as well as any
• f cases holding that the DOL (as well as any
• ther agencies) must go through the usual

process of notice-and-comment rulemaking when the agency intends to “clarify” or “interpret” a regulation.

I.T. WORKERS/COMPUTER PROGRAMMERS

• Computer systems analysts, computer programmers,

p y y , p p g , software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties may be exempt from minimum wage and job duties may be exempt from minimum wage and

• vertime requirements of the FLSA.

– To be exempt, these employees must be paid at least $455 per k l b i id h l b i t t t week on a salary basis or paid on an hourly basis, at a rate not less than $27.63 per hour.

16

I.T. WORKERS/COMPUTER PROGRAMMERS (cont’d)

• To qualify for the computer employee exemption, the following tests must be

met: met:

– Employee must be paid at least $455 per week on a salary basis or paid on an hourly basis, at a rate not less than $27.63 per hour; – Employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer fi ld f i th d ti d ib d b l field performing the duties described below; – The employee’s primary duty must consist of:

• The application of systems analysis techniques and procedures, including consulting

with users, to determine hardware, software or system function specifications;

• The design, development, documentation, analysis, creation, testing or modification of

computer systems or programs or of programs related to user or system design computer systems or programs, or of programs related to user or system design specifications; or

• The design, documentation, testing, creation or modification of computer programs

related to machine operating systems; or

• A combination of the aforementioned duties, the performance of which requires the

same level of skills. 17

I.T. WORKERS/COMPUTER PROGRAMMERS (cont’d)

• The computer employee exemption does not include

l d i th f t i f employees engaged in the manufacture or repair of computer hardware and related equipment.

• Exemption also does not apply to employees whose

k i hi hl d d t t b t h work is highly dependent upon computers, but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related

• ccupations
• ccupations.

18

I.T. WORKERS/COMPUTER PROGRAMMERS (cont’d)

• Martin v. Indiana Michigan Power Co., 9 WH Cases2d 1505 (6th

Cir 2004): Cir.2004):

– Computer help desk employees who provide computer maintenance and support do not qualify for administrative exemption, as they are not designing or creating computer systems and their primary function is to assist in keeping the computers and the network running to the assist in keeping the computers and the network running to the specifications and designs of others.

• Jackson v. McKeeson Health Solutions, 19 WH Cases2d 374 (D.

Mass.2004):

– Computer support employees who spend the predominant amount of – Computer support employees who spend the predominant amount of their time troubleshooting computer problems encountered by various company departments and entities was not exercising discretion and independent judgment required under the regulations, but rather highly technical skill.

19

I.T. WORKERS/COMPUTER PROGRAMMERS (cont’d)

• Pellerin v. Xspedius Mgm’t Co., 432 F.Supp. 2d 627 (W.D. La. 2006):

– Exemption applies to employee responsible for maintaining and supporting software applications by adding input fields, correcting bugs, and changing codes.

• Bergquist v. Fidelity Info. Servs., Inc., 399 F.Supp. 2d 1320 (11th Cir.

Bergquist v. Fidelity Info. Servs., Inc., 399 F.Supp. 2d 1320 (11th Cir. 2006):

– Exemption applies to computer programmer responsible for designing programs, assisting the business analyst with technical details of computer programs and working on a project team to design pieces of computer programs, and working on a project team to design pieces of programs that would be integrated into the work of other team members.

20

SALES STAFF

• To qualify for the outside sales exemption, all of the

q y p , following tests must be met:

– Employee’s primary duty must be making sales (as defined in FLSA) or obtaining orders or contracts for services or for the use FLSA), or obtaining orders or contracts for services or for the use

• f facilities for which a consideration will be paid by the client or

customer; and – The employee must be customarily and regularly engaged away The employee must be customarily and regularly engaged away from the employer’s place or places of business.

21

SALES STAFF (cont’d)

• The salary requirements of the regulation do not

The salary requirements of the regulation do not apply to the outside sales exemption. An employee who does not satisfy the requirements

• f the outside sales exemption may still qualify

as an exempt employee under one of the other ti ll d b th FLSA exemptions allowed by the FLSA.

22

SALES STAFF (cont’d)

• Primary duty:

P i i l i j t i t t d t th t th l – Principal, main, major or most important duty that the employee performs.

• Making sales:

– “Sales” includes any sale, exchange, contract to sell, consignment for l hi t f l th di iti It i l d th t f f sales, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.

• Away from employer’s place of business:

A t id l l k l t th t ’ l f – An outside sales employee makes sales at the customer’s place of business, or, if selling door-to-door, at the customer’s home. Outside sales does not include sales made by mail, telephone or the Internet unless such contact is used merely as an adjunct to personal calls.

23

SALES STAFF (cont’d)

• Some states recognize a formal inside sales exemption.

g p For instance, New Jersey’s inside sales exemption covers any employee whose primary duty consists of sales activity and who receives at least 50% of his or her sales activity and who receives at least 50% of his or her total compensation from commissions and a total compensation of not less than $400 per week.

24

SALES STAFF (cont’d)

• Martin v. Cooper Elec. Supply Co., 940 F2d 896

Martin v. Cooper Elec. Supply Co., 940 F2d 896 (3rd Cir.1991):

– Court holds that employer violated FLSA, as inside salespersons were not bona fide “administrative” employees and thus were not eligible for statutory exemption from Act’s overtime and record keeping exemption from Act s overtime and record keeping requirements.

25

CLERICAL EMPLOYEE EXEMPTION

• An executive assistant or administrative assistant to a

business owner or senior executive of a large business generally meets the duties requirements for the administrative exemption if such employee without administrative exemption if such employee, without specific instructions or prescribed procedures, has been delegated authority regarding matters of significance.

26

Contact Information Contact Information

Mark Tabakman, Esq. 973 994 7554 973.994.7554 mtabakman@foxrothschild.com

http://wagehourlaw.foxrothschild.com

27

28

Exempt or Non‐Exempt? Employee Misclassification Challenges

Current Trends & Vulnerable Positions

Brent E Pelton Esq Brent E. Pelton, Esq. Pelton & Associates, PC 111 Broadway, Suite 901 New York, New York 10006 l l www.peltonlaw.com 3/20/13

29

Assistant Managers

 What percentage of the workforce is “managerial”?  What percentage of the workforce is managerial ?  Different color shirt is not enough – job duties must truly include managerial

responsibilities in which employees exercise independent discretion with p p y p respect to matters of importance

 Looks bad if paid less than what non‐managerial crew members would have

earned with overtime (unofficial smell test cross‐check)

 Not allowed to pro‐rate salaries for partial‐day deductions in any

circumstance circumstance

30

“Analysts” or “Associates”

 Recent college graduates  Recent college graduates  Positions that require employees to “pay their dues” to the company

May work with significant amounts of $ but position does not exercise

 May work with significant amounts of $ but position does not exercise

significant independent judgment or control

 Finance – reconciliations & trade confirmations  Accounting – new unlicensed “accountants”  Interns – Unpaid internships frequently violate FLSA’s minimum wage

p p q y g requirements

31

Financial Services

 Employees who have been with the organization for some time but still  Employees who have been with the organization for some time but still

perform ministerial duties

 Assistants and highly‐compensated employees who have not been

g y p p y delegated significant authority regarding matters of significance

 Mortgage loan officers – two trials on mortgage loan officers within the past

• year. Same position – one held exempt; other non‐exempt

 IT employees

32

Computer Workers

 Help desk & other “break fix” employees  Help desk & other break fix employees  Hedge fund computer employees work on systems used to control billions of

dollars, but simply because the work they perform is important does not , p y y p p mean that it is exempt!

 Setting up computers & phone systems  Watch out for “on call” work and working from home

33

Other Misclassification Issues

 Day‐rate industries (E g construction extraction)  Day rate industries (E.g., construction, extraction)  Piece‐rate workers get overtime too  Clerical workers – being paid a salary is not enough  Clerical workers being paid a salary is not enough  Household help – drivers, chefs, housekeepers & nannies

E.g., Hedge fund founder requires his Hamptons staff to work 15+ hour E.g., Hedge fund founder requires his Hamptons staff to work 15+ hour days and to sleep in the basement!

 Hourly managers  Partial‐day salary deductions are always impermissible!

34

Pharmaceutical Salespersons

 Sole US Supreme Court decision in 2012 was Christipher v SmithKline Beecham  Sole US Supreme Court decision in 2012 was Christipher v. SmithKline Beecham

Corp., 132 S. Ct. 2156 (June 18, 2012)

 Supreme Court held that pharmaceutical salespersons at issue were exempt

“Outside Salespersons,” even though they were prohibited by federal law from Outside Salespersons, even though they were prohibited by federal law from actualy making sales.

 Supreme Court failed to give deference to DOL due to its changing rationale for

its position and because the DOL did not give “fair warning” for the change. p g g g

 DOL had not enforced its position on pharmaceutical industry prior to 2009.  Sales includes a “consignment for sale,” which does not involve the transfer of

g , title.

35

Overtime Updates

 Expect changes within the home health care industry  Expect changes within the home health care industry.  Watch for more protective state laws for both overtime classifications and

minimum wage rates

 Fluctuating work week applicable to misclassification cases?  Arbitration

 it may be a good forum for employees  May be expensive for employers  Class arbitration may still be granted post‐Stolt Neilsen  Employers must be careful of what they ask for with arbitration

Exem pt or Non-Exem pt? Employee Misclassification Employee Misclassification Challenges

I dentifying Vulnerabilities and Minim izing Liability Under FLSA and State Law Daniel J. McCoy, Esq. Partner and Co-Chair Employment Practices Group Partner and Co Chair, Employment Practices Group 650-335-7897 dmccoy@fenwick.com Fenwick & West LLP March 20, 2013

SELF-AUDI T STRATEGI ES

• Selecting the Auditor
• Selecting the Auditor
• Pay Practices and Policies
• Job Descriptions
• Post-Merger Integration

g g

• Documentation

37

SELF-AUDI T STRATEGI ES Selecting the Auditor

• Factors in Selecting:
• Factors in Selecting:
• Skill
• Preserving Atty-Client Privilege
• Preserving Atty Client Privilege
• Optics Of Internal vs. External Resource

– Evaluate Pros And Cons Of Having “Outsiders” Conduct

Audit

• Engage an auditor with solid knowledge of federal

and state law and the skill to critically look beyond and state law, and the skill to critically look beyond job descriptions and questionnaires to ask hard questions.

38

SELF-AUDI T STRATEGI ES Pay Practices and Policies

• The

duties test is merely half the battle

• The

duties test is merely half the battle. Employers must meet the salary test as well to establish the exemption. p

• In general, “supplemental” wages beyond base

salary will not defeat the exemption while salary will not defeat the exemption, while deductions from base pay generally will.

39

SELF-AUDI T STRATEGI ES Pay Practices and Policies

• Hours-based bonuses are risky and should be
• Hours based bonuses are risky and should be

avoided. MBOs and

• ther

performance/ merit based

• MBOs

and

• ther

performance/ merit-based bonuses are generally permissible, i.e. consistent with the salary test consistent with the salary test.

• Time-tracking:

if you are tracking exempt worker’s time is there a good reason for doing worker s time, is there a good reason for doing so (e.g. customer billings)?

40

SELF-AUDI T STRATEGI ES Job Descriptions

• They

are Exhibit A in the employer’s exemption

• They

are Exhibit A in the employer s exemption defense, but they are of little value if they do not reflect a reality and/ or are embellished.

• Every employer should have a gatekeeper who is

responsible to keep JDs current.

• Are

internal and external descriptions

• f

exempt positions consistent? Review job postings and compare against internal (e.g. JDs, performance reviews, offer letters, etc.) for consistency.

41

SELF-AUDI T STRATEGI ES Post-Merger Integration

• It

is vitally important for the Acquiror to assess exempt a y po a

• qu o
• a

p classifications within the Target’s organization.

• Ideally, this is vetted and assessed during the diligence process

d i t th l b t ti d th ti l li it ti and prior to the close, but time and other practical limitations may prevent this from happening until post-close.

• Employers must

implement a strategy to explain, in a non- p y p gy p , provocative manner, why employees may be converted from exempt to non-exempt status. The Acquiror should use a purchase price escrow and/ or strong

• The Acquiror should use a purchase price escrow and/ or strong

indemnification provisions to deal with potential post-close

• vertime claims based on alleged misclassification.

42

SELF-AUDI T STRATEGI ES Documentation

• At

the

• utset,

the employer should prepare a clear and

• u

, p oy

• u d

p pa a a a d comprehensive scope document, setting forth the groups/ positions that will be analyzed and the general plan of action for the analysis. action for the analysis.

• Auditor’s primary sources of information:
• Job Descriptions
• Performance Reviews
• Supervisor Input (through interviews and questionnaire responses)

43

SELF-AUDI T STRATEGI ES Documentation

• Attorney-Client Privilege:
• y

g

• Evaluate up front, i.e. before pen is put to paper, how to involve

legal counsel in the audit so as to preserve privilege.

• Counsel need not lead or even be directly involved as an auditor or
• Counsel need not lead or even be directly involved as an auditor or

investigator, but must have meaningful involvement in the review

• f questionnaire responses, preliminary conclusions, etc., to

credibly establish privilege with the audit.

• Audit Report:
• Scope/ extent will be dictated by the nature of the audit.
• Decisions – to maintain exemption or reclassify – should be

Decisions to maintain exemption or reclassify should be supported by clear and cogent description of primary duties and time analysis.

44

45

Exempt or Non‐Exempt? Employee Misclassification Challenges

Self‐Audit Strategies

46

Self‐Audit

Most wage & hour complaints arise from unhappy workers

 Most wage & hour complaints arise from unhappy workers  Electronic discovery may provide significant evidence of willful

violation

 Does the company hire independent contractors?  Is the company trying to do the right thing?

 Courts are impressed where companies are able to explain the

work that was put into arriving at a classification.

 Has the company responded to recent lawsuits and trends?

47

Self‐Audit

 Watch out for:  Watch out for:  Variations as to classification within departments & across the

industry;

 Unlawful payroll deductions, meal & rest breaks & accurate

U a u pay o deduc o s, ea & es b ea s & accu a e timekeeping systems;

 Comp‐time policies & hourly employees who are automatically paid

based on an 8‐hour day;

 On call & time spent performing work that is not within the regular

workday; and

 Unpaid prevailing wages within construction and building services

industries industries.

48

Exempt or Non‐Exempt? Employee Misclassification Challenges

Correcting Errors & Limiting Liability

49

Correcting Errors & Limiting Liability Exposure

 Use care in reclassifying employees or you will hear “the company admitted  Use care in reclassifying employees or you will hear the company admitted

they were paying us improperly!”

 Coordinate DOL investigation & private lawsuit – often DOL will forego its

g p g investigation if a federal lawsuit is pending

 DO NOT RETALIATE – retaliation may result in additional claims and punitive

damages!

 Are there records? If not, back wage payments may be based upon

employees’ best testimony Be mindful of spoliation of evidence employees best testimony. Be mindful of spoliation of evidence.

50

Correcting Errors and Limiting Liability Exposure

d

 Is it company‐wide or just a rouge manager or

• ne division?

 Informal discovery and mediation?  Agree to conditional certification with respect to

g p a narrower class of employees (job title or geographic location) to manage scope

Correcting Errors and Limiting Liability

51

g g y Exposure

 Avoid attorneys’ fees and negotiate liquidated damages  Avoid attorneys fees and negotiate liquidated damages  Admit mistakes – employer may be able to avoid liquidated damages by

agreeing to resolution that compensates employees for unpaid wages g g p p y p g

 Expect judicial scrutiny of any settlement

A i t ttl t i ibl ith t j di i l l? S M ti

 Are private settlements permissible without judicial approval? See Martin v.

Spring Break “83 Productions LLC, 688 F.3d at 249.

52

Correcting Errors and Limiting Liability Exposure

 Unions may demand a seat at the table or threaten to object to a settlement  Unions may demand a seat at the table or threaten to object to a settlement  Release of claim must be supervised by the DOL or the court

Courts increasingly hold settlements may not be confidential and must be filed

 Courts increasingly hold settlements may not be confidential and must be filed

• n ecf

 Use available records to estimate claims  NY DOL will issue back payments but rarely releases – class settlement may be

the only way to truly resolve the claim.

 If not resolved quickly, FLSA claims tend to grow.