Jobs change all the time, sometimes because the nature of the business changes or a department’s work evolves.
Sometimes, change occurs simply because employees naturally begin assuming additional job duties as they become more experienced.
As job duties change, evolve or grow, make sure you regularly review employee responsibilities, update job descriptions to reflect the reality on the ground and determine if the job is properly classified as exempt or nonexempt.
Don’t rely on an analysis that’s even a couple of years old—or even an analysis provided by the U.S. Department of Labor (DOL) itself.
Recent case: Fredda Malena’s job title was executive assistant when she worked in Victoria’s Secret’s corporate office for about three years. She was assigned to one senior executive and spent her time at work maintaining the calendar, making travel arrangements, performing clerical tasks and running errands.
Malena claimed that her boss gave her very specific instructions and that she “did not make any independent decisions” while going about her tasks.
She almost always worked more than 40 hours per week and never received overtime pay because Victoria’s Secret had designated the executive assistants as. Victoria’s Secret said the job required independent judgment and discretion—one of the requirements for exempt status under the federal Fair Labor Standards Act ( ).
Victoria’s Secret relied on two factors to support its position that executive assistants were exempt.
First, the DOL had conducted an FLSA audit back in 2005. It found that the company was undergoing a growth spurt and that jobs were constantly changing. Second, during their review, DOL auditors had analyzed one specific executive assistant position and concluded that it was properly classified as exempt.
That finding prompted the company’s attorneys and an outside law firm to review all job descriptions. They decided that all executive assistants were exempt.
Malena sued on behalf of herself and others similarly situated for unpaid overtime.
Because everyone involved in the lawsuit agreed that executive assistants didn’t receive overtime and were all classified as exempt, the question the court faced was whether the classification was correct.
Victoria’s Secret first claimed that the DOL audit protected it from liability, even if both the DOL and the company’s interpretation was wrong. The court rejected that argument, reasoning that the audit had only looked at one specific position. (The court noted that if the DOL had looked at everyone with the same title and concluded the classification was correct, the result might have been different.)
Then the company tried to rely on counsel’s analysis. That strategy failed, too. The court said employees can always challenge a classification, based on how the actual job is performed. (Malena v. Victoria’s Secret Direct, No. 09-Civ-5849, SD NY, 2010)
Final note: Updating job descriptions should be an annual event, and employees should be involved. Have them review their current job descriptions and add or delete tasks so that the description reflects the actual work performed. Then have them sign the revised job description. Employees will have a much harder time challenging a job description if they participated in crafting it.
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