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While most workers might like their nonexempt, hourly status so they can remain eligible for overtime when they work extra hours, that isn’t always the case.

Today, employees are very concerned about their earning power, and if their employers have pay schedules that cap hourly pay while exempt employees can keep earning raises, some may want to be reclassified. That’s especially true for those who aren’t working overtime anyway, and thus have little to lose by becoming exempt.

If an employee asks to be reclassified from nonexempt to exempt, make sure you carefully look at her position to determine her proper classification. If you have a legitimate reason for your classification decision, chances are she won’t be able to win a claim that you discriminated when you refused to reclassify her.

Recent case: Margaret Villarreal worked in a college registrar’s office for many years, starting as a clerk and earning regular promotions. She eventually topped out on the hourly employee pay scale. After she filed a discrimination complaint (which the parties settled), she asked to be reclassified as exempt. That would mean she could earn more money.

The college took a careful look at her job duties and responsibilities. It concluded she really didn’t fit into any of the exempt categories because her job didn’t involve discretion, management or any of the other characteristics of an exempt employee position.

Villarreal sued, alleging that the college’s refusal to change her status was retaliation.

But the court dismissed her case. It reasoned that the college got the classification right, and therefore Villarreal hadn’t suffered an adverse employment action. She also couldn’t point to anyone else with similar duties who was classified as exempt. (Villarreal v. Del Mar College, No. 13-07-00119, Court of Appeals of Texas, Thirteenth District, 2009)

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