Q: We have some non-exempt employees who are misclassified as exempt. Is summer the best time to make the change? What communication method do you suggest? Is there better language than the DOL’s “primary duties do not include using discretion and independent judgment in matters of significance” (which will offend those employees who think their status is being downgraded)?
A: First, congratulations on addressing this issue head-on. Here are a few thoughts on how to communicate the message. Timing—over the summer would definitely make sense to me. I might try to make it July 1, or September 1, or whenever new salaries might go into effect—so that it is tied to a logical break point.
Communication Method—I generally recommend individual meetings with each employee affected, at which they’d be provided with a brief letter explaining the change and the effective date.
Explanation/Language—I wouldn’t be inclined to go into any level of detail in writing. Rather, I would keep it to something like … “As a result of a recent review of positions in the school, we’ve determined the need to re-classify your position as non-exempt (eligible for overtime pay), based on federal and state employment regulations.” Then, I’d try to shift attention as much as possible to the “going forward” part—i.e., “this means that you will now be eligible for overtime pay for hours worked more than 40 hours in a week …”
It’s a tricky spot, since any employer is technically on the hook for back overtime pay for misclassified positions (for up to 2–3 years, depending on whether the violation was “willful,” or not). I really don’t know of a best way to handle this (i.e., calculate and pay back overtime; don’t pay back overtime; etc.). Any way you turn has its complications. The only “best” is really just doing it, knowing that some risk is involved no matter what you do.
That being said, if an employee persists in their questioning, it’s only fair to share the details with him or her. Before going to “lacking independent judgment, etc.,” I would probably start with something like … “the law specifies certain exempt criteria and the position doesn’t meet those criteria.” This begs the question of “don’t you owe me back overtime?” of course—which gets us back to the above comments on back pay. Again, no good answers, really.
Perhaps the best we can say is something like … “All positions at the school are valuable—money is always tight, and we wouldn’t have a position if it didn’t perform an important service to the school. At the same time, we need to comply with regulations. Making this change doesn’t represent a change in the value of your contribution to the school—it’s just a change in how we classify the position based on legal requirements; nothing less, nothing more. We appreciate your support of the school’s efforts in complying with this change.”
Most importantly, we urge schools to rectify exempt/non-exempt issues—but to do so under the direct guidance of your employment attorney.
Once a month, ISM’s Human Resources Consultant, Michael Brisciana, will answer an HR-related question submitted by one of our readers. To ask Michael a question to be in addressed in future e-letters, please click here.
