Don’t rely on old job descriptions or résumés to prove you have properly classified an employee as exempt from overtime. Instead, make sure employees’ job descriptions actually reflect the day-to-day work they’re performing. Little else counts.
It’s a good idea to have employees regularly revise their job descriptions to include any new tasks and delete ones no longer performed. Then someone in HR should review the descriptions. Get independent verification that the employee’s description is correct by talking to a supervisor or performing a desk audit. Change the exemption status if it turns out the employee should be reclassified.
Otherwise, you run the risk that the employee will come back later (perhaps after being fired) to claim she was really an hourly employee—and is due thousands of dollars in overtime pay.
Recent case: Shirley Boring worked for the World Gym, starting as a data-entry hourly employee and quickly earning promotions to secretary and accounts-payable clerk. With the promotion, she was designated as an exempt administrative employee.
All went well for a time until Boring began to suffer from various ailments that required many doctor visits. At one point, she claimed to suffer from brain cancer. In fact, her condition was benign and did not require surgery or any other treatment.
Then Boring’s behavior became, in her employer’s eyes, bizarre. She called up the gym owner while he was having dinner and claimed that his wife had asked Boring why she wasn’t dead yet from the brain tumor. The owner’s wife denied ever making the call, and Boring was fired.
She sued, alleging she should have been classified as an hourly employee entitled to overtime.
In court, World Gym had to show that Boring’s primary duty involved office or nonmanual work directly related to policies or general business operations. Plus, it had to show that her primary duties required the exercise of discretion and independent judgment.
It didn’t matter that Boring’s own résumé listed a number of important management duties—what mattered was what she actually did day to day. In fact, her résumé said she managed eight employees and performed budgeting tasks. Plus, she had the ability to come and go as she pleased, including taking time off without pay reductions for all the medical appointments.
None of that mattered, especially since much of the résumé appeared to be greatly exaggerated. All indications pointed to Boring being an hourly employee. Fortunately for the employer, it was also clear Boring never worked more than 40 hours in any workweek—so although she may have been misclassified, she wasn’t owed any money. The court ruled in World Gym’s favor. (Boring v. World Gym, No. 06-C-320, ND IL, 2009)
Final note: Remember, what you call an employee is irrelevant under the Fair Labor Standards Act. Nor does it matter that you pay someone a salary. Receiving a salary does not define an employee’s exempt status. The particular job duties and responsibilities do.
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