My first job out of college was as a non-exempt clerical, and I wasn't a very "good fit." The work aside, I chafed at the rigid rules about start times-stop times-breaks-lunch hours-quitting times. If there was some work that I wanted to finish up and it was "lunch time," I couldn't take the extra 15 minutes needed to get it done. I had to stop right then and there, and go to lunch, or at least stop working. I couldn't start early or stay late, even if I was on a roll.
Well, come December 1, you can take my experience and multiply it by 4.2 million, the number of currently exempt workers in the United States who, according to the Obama Administration, will now become non-exempt under the Final Rule on white-collar exemptions under the Fair Labor Standards Act.
But isn't becoming non-exempt a good thing? Because now these workers will get overtime whenever they work more than 40 hours in a week?
Yes, they will be eligible for overtime, but that won't not necessarily be viewed as a net "positive." Studies have shown that many exempt employees who are reclassified to non-exempt view it as a negative change in status equivalent to a demotion. Some may have cuts in their rates of pay to allow the employer to pay overtime without paying more in real dollars. Some may be prohibited from working overtime -- in other words, getting all the "penalty" (loss of status) and no reward (overtime pay). Some may lose their flexibility in hours, or their ability to work from home. In addition, the obligation to track their time will be viewed by them (as well as their employers) as a new administrative headache.
In short, the mass reclassification that will have to take effect by December 1 has the makings for an employee morale nightmare.
Here are a few tips for employers to make the transition to "new non-exempt" less painful for the affected employees:
DO let the employees know that the reclassification was the government's doing, not yours. This was required by a change in the law. It wasn't your idea, and it's not because of any fault on the part of the reclassified employees. Make sure that your new non-exempts know that they are still valued just as much as before. If your decision as a company is not only to reclassify your exempt employees but also to cut their rates of pay or to take away their flexibility, expect to have to work even harder to overcome their feelings of being devalued.
DO provide training on the many timekeeping issues that they haven't had to worry about for a long time, if ever. If you decide to let them keep their flexibility, they'll have to understand the importance of accurately documenting their time worked - even if it's something as "trivial" as taking a business call in the car on the way to work or answering some emails in the evening at home. This is a very hard habit to start.
DO get across that you really, truly don't want them to "help" you by working and not posting the time. Many new non-exempt employees are going to think, "Rules, schmules, I'm going to do what's necessary to get the job done. I just won't put down that extra time, and no one will be the wiser." You'll have to persuade the new non-exempt employees that, yes, you really do want them to accurately post all hours worked -- including those "do what it takes" hours. Train employees and their supervisors on this, and reiterate as often as necessary. Low-key, friendly reminders are helpful, too. For example, if you know that a new non-exempt worked through lunch on a project, tell him right then and there, "Be sure you include this extra hour on your time for this week." It may take a while before employees start believing that you really want them to record all of their work time.
DON'T let the "new non-exempt" take off in the middle of the work day for personal stuff (or coming in late or leaving early) without accurately posting that. This is the other side of the "new non-exempt" coin. Many exempt employees are used to having the freedom to be late getting into the office, to take off in the middle of the day to go to their kids' soccer games, or to leave early once in a while. No big deal, as long as the work gets done, right? Not anymore. If want to let your new non-exempt employees be flexible, that's great, but they'll need to accurately record their non-working time, too. (NOTE: If they're being paid according to the fluctuating workweek method, then you'd normally have to pay them for a full week if they worked any time during that week unless the time off was covered by PTO.)
DO learn the FLSA overnight travel rules because you'll need to apply them. The rules during the workday are relatively simple: Commuting time (between home and workplace) is generally not compensable unless work is performed, but all travel time that occurs "in a day's work" (between worksites) is covered, even if no actual "tasks" are performed. Travel time between home and an off-site assignment may be at least partially compensable, depending on the length of the trip.
But if your new non-exempt has to go out of town overnight, then all kinds of crazy rules apply. Make sure you know them.
Reassure, Review, Reiterate, and Repeat
The December 1 transition won't be easy for employers, for a lot of reasons. But it will go a little more smoothly if employers remember to Reassure, Review, Reiterate, and Repeat to avoid the morale fallout that is otherwise likely to occur when exempt employees become new non-exempts.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Kelly McGrath
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010