the Risk of Non-Exempt Employee Misclassification

As companies get more sophisticat5ed in the use of information techno9logy and other production and communication tools, there is often a risk that the employers will cross a line whereby some employees may be asked to (or even willing to) work beyond their scheduled work hours. " Technological advances such as personal data assistants (PDAs), the Blackberry®, and remote online email access have increased worker productivity and made it easier for employers to implement flexible workplace arrangements, but they have also substantially increased the risk that non-exempt employees with access to such technologies will engage in off-the-clock work" (Jacob 42). There have been an increasing number of cases- including class-action law suits against retailers like Dollar Family Stores and even Wal-Mart accusing these employers of improperly classifying non exempt employees. As strict as labor laws are in the U.S. there are always companies willing to test the limits for no other purpose than to enhance their bottom lines. And, as the economy continues to suffer, one may see an increasing number of misclassification lawsuits.

The Federal government continues to oversee the rights of employees in their quest for fair pay for their work, and the need for extra, or overtime, pay when they are asked- or sometimes forced- to spend long hours past their regular work-day schedules in order to meet demand or time-tables. What is important to recognize in this effort to classify properly those employees who have a right to extra pay for extra work is that the economic situation in the U.S. today seems to favor the employer who can easily insist on extra work as a means of holding on to the job. This situation can remind someone steeped in the history of unions in America with the beginning of the garment workers union at the turn of the Twentieth Century when workers were often told "if you don't come in to work on Sunday, don't bother coming to work on Monday."

Despite the growth and greater sophistication of the sort of technology that goes into a day's work, some companies still insist on manual "preparation" before the clock officially begins, and some of the larger financial institutions- Bank of America and Wells Fargo are now being sued for extra pay: O ne current lawsuit alleges that telephone-dedicated call center employees were required to perform essential preparatory and related work activities before and after their paid shifts. These activities were integral and indispensable for them to perform their duties. "Examples of the alleged unlawful practices include finding a computer station, retrieving their headsets and other necessary equipment from their lockers, logging in to a computer, logging on to BOA's network, opening relevant computer programs and software applications, reviewing memoranda and email, and completing other essential tasks. Similar duties were performed after being required to clock out following their last call of the day" ("Sueve Siegal" 79).

Bankers are the most vocal in rejecting any effort to provide more pay for longer hours. The problem began during the Bush Administration, when overtime pay would be offered to low- wage workers but would make higher-paid employees ineligible for extra money for working more than 40 hours in a week. What bankers are still aiming for is to have the rewritten rules specifically disqualify bank employees like loan officers and mortgage brokers from overtime pay. No wonder the larger financial institutions like Wells Fargo and Bank of America are being more closely inspected and often sued for their non exempt policies which do not always jibe with federal labor laws. It is not only the financial industry, but food chains that are under the microscope. One example of fines levied by the Labor Department: "Einstein Brothers Bagels is one employer that found out just how hefty when it recently had to pay a settlement of $495,930.93 to 424 assistant managers in 27 states" ("Exempt" 10). No doubt this suit was and is being closely followed by many other food chains, especially fast food franchises where most su0ervisors and managers are seldom given overtime pay. As the economy continues to lag, there surely will be more and more potentially illegal efforts to keep from providing overtime pay to employees. Even in the employees are willing to work longer hours, even if only to keep their jobs, the U.S. labor laws distinctly define who is and can be exempt and who does not qualify.

References:

" Exempt or non-exempt? How to be sure" New York: HR Focus

Vol. 80, Iss. 3 March, 2003

Jacob, Gregory F.: " Avoiding Liability for Off-the-Clock Work

in the Brave New World of the Blackberry" New York:

Employee Labor Relations Journal Summer, 2010 Vol. 36,

Iss. 1, p 42

" Stueve Siegel Hanson LLP Files Lawsuit
against Bank of America for Failure to
Pay Earned Wages and Overtime Pay"
Atlanta: Computer Business Week,
Nov, 19, 2009,