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Asking Employees to do More Could be a Violation of FLSA

Posted by Lauren DiChiacchio on Oct 7, 2013 2:11:00 PM

FLSA, HR tips, career help, staffing services In times of government shutdowns, furloughed employees and companies trying to do more with less, you may be asking a lot of your employees. But, what if you are asking too much and violating the Fair Labor Standards Act (FLSA)?

In a recent case, Heyen v. Safeway Inc, Linda Heyen sued Safeway after they terminated her employment as an assistant manager. She brought the suit to recover unpaid overtime pay, contending Safeway should have classified her as a "nonexempt" employee because she regularly spent more than 50 percent of her work doing "non-exempt" tasks such as bagging groceries and stocking shelves. The court agreed and awarded her overtime pay of $26,184.60 plus interest.

Safeway appealed, arguing that the court failed to properly account for hours, she simultaneously performed exempt and nonexempt tasks, i.e. actively managing the store while also concurrently performing some stocking and bagging of customer grocery purchases.

Safeway lost on appeal when the court rejected Safeway's multitasking argument, noting that “the regulations look to the supervisor’s reason or purpose for undertaking the task. If a task is performed because it is helpful in supervising the employees or contributes to the smooth functioning of the department for which the supervisors are responsible, the work is exempt; if not, it is nonexempt.” The trial court’s jury instruction, approved by the court, read in part as follows:

"If a party claims that an employee is engaged in concurrent performance of exempt and nonexempt work, you must consider that time to be either an exempt or a nonexempt activity depending on the primary purpose for which the employee undertook the activity at that time. The nature of the activity can change from time to time."

In performing the duties analysis, the court inquired into the “work actually performed by the employee during the workweek,” and also to the “employer’s realistic expectations and the realistic requirements of the job.”

Why the Court's Ruling Matters

The crux of the case and the red flag for you as an HR Manager is monitoring the work exempt employees are doing and how much of it they are doing.

According to Heyen, the real problem was that Safeway did not allocate sufficient labor capital to the store, forcing the manager to perform non-exempt tasks to fill in the gaps. This need was further exacerbated by difficulties hiring bookkeepers and labor issues.

In order for an employee to be exempt, it's not just enough that they are paid a salary. They must also have the ability to use discretion and exercise their judgment in carrying out their job duties, and they must spend more than 50% of their time performing exempt duties.

Job Descriptions - One More Reminder

We're going to remind you one more time that job descriptions are a critical component of a well run HR department and organization. Within the job description it will clearly articulate whether the position is exempt or non-exempt as well as a list of duties.

As an HR manager or member of Senior Management, you need to communicate to your employees that, should their job function begin to deviate from their documented job description, they need to let someone know. Further, you can draft a policy that states that employees are not expected to perform non-exempt tasks except in special circumstances. But ultimately, it is up to you to be aware of what employees are being asked to do on a regular basis and make sure they are staying in the 50% plus on maintaining exempt duties to avoid misclassification.

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Topics: Legal & Legislative, Employee Relations

Staffing Plus is a premier healthcare staffing firm that provides temporary, per diem, temp-to-hire and permanent Staffing Solutions for Behavioral Health, Education, and Healthcare settings. We have leveraged decades of experience to assist organizations with the challenges of managing their HR and Recruiting needs.