Exempt vs Non-Exempt

[goodbirdie]

What is the name of your state? CA

What are the differences between Exempt and Non-Exempt positions? Is this spelled out clearly and in detail anywhere?

What about this kind of job: Title was Engineering Support Analyst, no technical degree required. The "analysis" was not of an engineering or mathematical type of analysis. Job duties consisted of preparing (creating charts on the computer, using PowerPoint; not responsible for the content of the charts) briefing charts for the scientists and engineers; preparing reports (typing them, creating and inserting graphics, getting them reproduced); tracking when a government contract required reports to be submitted and reminding engineers and management of the reporting schedule. No people worked "under" me. It was basically a program management support type of position, i.e., supporting program management in the conduct of a government contract.

Is this enough info?

I was classified Exempt. Was encouraged to work more than 40-hour weeks as the company got paid for that time from the contract, but I was not reimbursed for overtime.

If there is anything to this, is there a "statute of limitations?" on filing some type of claim?

 

[goodbirdie]

Sorry, should have added: Hired into this company as a secretary and worked for many years as a secretary - this was considered a "way out of secretarial" and a way to use my head a little more, as reading contracts and making determinations as to what was contractually required were accomplished. But basically it was secretarial STILL . . . the only thing was I was not required to do any personnel type paperwork (processing vacation requests, or doing raise paperwork, or maintaining employee folders, or making travel reservations, for instance).

 

[cbg]

Non-exempt is the default. Everyone is considered a non-exempt unless their job duties meet the definition of one of the "exemptions" allowed under the Fair Labor Standards Act. There are two tests: the "short test" and the "long test". If you qualify under either of the two tests, you can legally be considered exempt. BTW, despite what a great many people think, ONLY the executive exemption requires that you have people reporting to you. The professional, administrative and computer exemptions do NOT require that you be in a supervisory capacity. You can read the exemptions in the Act itself - look on the DOL web site: www.dol.gov - under FLSA.

Despite this, my opinion is that you were non-exempt. However, before making any definite determination, I would want to put your complete job description against the tests before saying definitely.

Off the top I don't know what the statute of limitations is; however, if you are still employed by them and still misclassified, you can still file a claim. If you are found to be misclassified, they will have to pay you up to two years of back overtime - three years if it is determined to be a "willful" violation.

 

[goodbirdie]

Thanks, cbg.

I'll take a look at the "FLSA act."

I was laid off from that company 3-1/2 years ago, after having worked there for 27 years. I never worked a huge amount of overtime, but a few times we literally burned the midnight oil preparing briefing charts for the engineers who were going to have to brief our "customer" or came in on a Saturday and sometimes Sat/Sun to help mgmt and engineers get ready for big contract "milestones" with the customer.

?My "job description" would be what the company published as generically required for that title, or what was specifically written up for me, or as described by me, or as described by performance evaluations, or "all of the above?"

Thanks!

 

[cbg]

While I couldn't find anything specific on the DOL web site, I suspect that three and a half may be beyond the statute of limitations. I see no reason, however, why you could not call them to inquire. The worst that can happen is that they say you've waited too long, and at best, you can make a claim.

As for the job description question, if I were making a determination of your official classification, I would use the description that was written up specifically for you, plus any input you had about how the written description varied from what you actually did.

 

[goodbirdie]

Doing a search on the web, here's what I found regarding the "test" of exempt vs nonexempt, specifically for the State of CA.

"3. Administrative Exemption

"Customarily and regularly exercises discretion and independent judgment in the performance of intellectual work which, in the context of an administrative function, is office or non-manual work directly related to management policies or the general business operations of the employer or the employer's customers."

I did "exercise discretion and independent judgment in the performance of intellectual work which, in the context of an administrative function, is office . . . work . . . " but NOT related to management policies or general business operations of either the employer or the employer's customers. The work I did of this nature was in gaining a thorough understanding of a specific government contract, for a specific product to be developed, and I was assigned to that program as the person who would keep track of all the documenting requirements embedded in the contract and specifically called for in the contract, and then tracking our performance, reminding people of upcoming due dates, analyzing whether I thought the document produced (usually a report) would meet the contract requirements, etc.

". . . . . or performs, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge, . . . . . "

They may have claimed I had "special experience" or "special knowledge" used in interpreting contractual requirements for reporting. But the special experience and special knowledge was just knowledge that I acquired from working in that position.

"If you have employees who perform exempt functions part of the time and non-exempt functions for the balance of the pay period, any time worked on non-exempt activities must be compensated for overtime if appropriate."

The above was a separate paragraph, after the "computer" exemption. Does it apply only to the computer exemption, or does it apply to all of the other exemptions? If it applies to all of the other exemptions, then almost 100% of the time that I worked overtime, it would have been in a "typist" and "chart-builder" position. The other tasks I performed where I used "discretion" or "judgment" never required overtime.

*******

Oh, and one other "duh!" question: I do NOT have any specific dates or hours in mind. I do know including the last few years of employment, I definitely worked overtime but I never kept track of dates and times, nor did I keep my weekly paystubs. Can the employer be "compelled" to provide me (or the Dept of Labor) weekly timecard info for, say, the last 2-3 years of my employment there? (I'm assuming they'd have some limit on how many years back they'd be willing to go?)

 

[cbg]

It's because of the rather broad potential interpretation of the administrative exemption that I was not willing to make a definitive judgement on whether you were correctly classified or not. I was trained on the when-in-doubt,-call-it-non-exempt school of thought. You can never go wrong calling someone non-exempt - you can legally call the CEO non-exempt if you're willing to pay him OT. Because someone CAN be classified as exempt, doesn't mean you legally have to. The opposite is not true, though - if they don't qualify as exempt, you cannot legally call them that. BTW, it doesn't matter whether any specific task requires OT, unless CA law has something really quirky. (Yes, it's possible - CA law is different in many regards from the other 49 states. But under Federal law, that doesn't matter) So it wouldn't matter if the tasks where you used discretion required OT or not. It's the job description as a whole.

I would really need to go over your job description point by point against either the short or long test before I would be willing to make a definite statement. Yours is not definitely clear cut and with the information available to me, I can see it going both ways, even though I'm leaning towards non-exempt.

The computer exemption was added afterwards, since at the time the FLSA was written, computers were practically non-existant in the workplace, and in some respects it is treated differently than the others. It is true that in some circumstances, an employee who does exempt work part of the time and non-exempt the other part can be required to be paid OT, but it depends on how much time you spent on the non-exempt tasks. I don't have my materials in front of me right now and I don't remember the percentage off the top of my head, but there is a certain percentage of non-exempt work you can do and still be considered exempt. It's only if you go beyond that percentage that the exemption comes into question.

I don't see that you can compel your former employer to provide you with the pay stubs. The DOL, however, can, assuming that 1.) you have not exceeded the SOL, 2.) you file a complaint and 3.) that the DOL takes on the case.

 

[goodbirdie]

Thank you so much, cbg, for your time and thoughtful impressions of what I've written.

I'll bet you're right . . . as far as the "going either way" thing . . . because this was a HUGE company, quite savvy about HR things and I know I was internally audited regarding my position title (and I believe the accompanying question of Exempt vs Non-Exempt) classification. I DO remember having to "assign" percentages to how much time I devoted to different tasks and that on average, more of my time was devoted to the "analyzing" and "exercising judgment" types of tasks.

It probably doesn't matter, either, but the recent govt contracts we worked REFUSED to pay anyone overtime (they worded it "premium time"), so everyone who worked on the program had to either be Exempt, or had to NOT WORK OVERTIME no matter what!

I'll have to find out if there's a "SOL". (Is it a coincidence that "statute of limitations" and "sh*t-out-of-luck" both reduce to "SOL?")(LOL)

Thanks again for your time!