Shifting exempt staff to nonexempt duties is OK for occasional tasks

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in Human Resources

Don't fear asking your managers to sweep the floor once in a while. As this case shows, occasionally assigning menial tasks won't automatically erase an employee's exempt status.

The Fair Labor Standards Act (FLSA) does paint some broad strokes on this topic. It says to retain their FLSA-exempt status, employees can't spend more than 20 percent of their time doing nonexempt work (40 percent in retail and service businesses).

Courts typically look at the totality of the circumstance. If the worker's primary duty is performing exempt tasks, the employee should remain exempt from overtime re-quirements. As this case illustrates, employees can't slice up the year and say they were exempt some weeks but nonexempt others.

Recent case: Every 18 months, a nuclear power plant shut down for routine maintenance, lasting about five weeks. During that time, some exempt employees performed mostly nonmanagerial work.

But the plant still considered those employees exempt and didn't pay them overtime when they logged more than 40 hours a week. The workers sued under the FLSA, arguing that their status changed during the five weeks they performed nonexempt tasks.

A lower court sided with the plant and a federal appeals court agreed. Reason: It would be wrong to throw the book at businesses that need flexibility to assign salaried managers to occasional but necessary duties. The FLSA, the court said, calls for a "holistic approach to determining an employee's primary duty. We cannot reject this approach in favor of day-by-day scrutiny of the tasks of managerial or administrative employees." (Counts v. South Carolina Electric & Gas Co., No. 02-1131, 4th Cir., 2003)

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