First, a tip of the hat to Winston Churchill, whose quote regarding the pact between Nazi Germany and the Soviets I ripped from its context. But the Fair Labor Standards Act (FLSA) and its requirements for and exemptions from overtime pay are an Act of Congress wrapped in litigation and interpretation inside the daily need for HR risk management and mitigation.
I’ve written and revised hundreds of job descriptions and classified each as exempt or non-exempt. In all cases I’m creating a defense against audit/exam risk, litigation risk, and reputation risk. That defense is created by balancing what can be read literally from the FLSA, what can be gleaned and applied reasonably from cases and legal interpretations, and which risks are particular to an organization. There are some clear concepts, but there is much subjectivity involved and that’s where an HR consultant, like Tenadel, and/or counsel can help by providing reliable guidance and lightening your decision-making load.
There is also, and importantly, a human element.
Many employees attach a hierarchical status to being in an Exempt position, and not unreasonably. They see that the high paid people, the people with greater authority are typically the Exempt people. There is salaried pay, rather than hourly. There’s no more time & attendance punching. There’s perceived and some actual freedom of schedule. (There’s also the opportunity to work 60 hours a week and get paid no more than for 40 or less!) But that type of class status is assumed and has grown outside of the law.
The purpose of the overtime provisions of the FLSA is not to employ exemptions, but to pay a higher rate for work over forty hours in a week. The Exemptions are exceptions that were lobbied for and negotiated as part of the legislative process. It was a win for organized labor which wanted a forty-hour week and bonus pay beyond that, and a win for the Federal government, because it incentivized additional hiring, rather than the payment of time + ½, at a time when higher employment was needed.
Unwrapping the riddle and breaking open the enigma to understand the mystery of FLSA compliance may help employees understand better why their jobs are classified one way or the other. It’s almost always good practice to take these processes out of the black box. Tenadel can help you do that.
