Correctly determining exemption status can help a district avoid consequences such as recovery of back wages, penalties and fines, or even personal liability of a supervisor.
Determining exemption status isn’t always obvious. While many jobs are easy to classify as either exempt (e.g., teacher, CFO, speech language pathologist) or nonexempt (e.g., mechanic, administrative assistant, food service worker), others are less easy to determine and can put a district at risk for a Fair Labor Standards Act (FLSA) violation. Even in situations where an employer is fairly certain of a determination, an outside observer like a Department of Labor (DOL) investigator may draw a different conclusion.
The DOL assumes all jobs are nonexempt unless the employer demonstrates that the job meets all criteria of one of the exemption tests. It would stand to reason that if an employer is in doubt, it’s best to err on the side of caution and designate a job as nonexempt. This advice is especially prudent considering that while any job can be classified as nonexempt, the reverse is not true.
Commonly misclassified jobs in education settings
TASB HR Services continually comes across many of the same jobs that have been misclassified as exempt. Some of the most common include:
- Computer technician
- Superintendent administrative assistant
- Licensed vocational nurse
- Certified occupational therapy assistant
- Cafeteria manager
- Certified physical therapy assistant
- Network technician
- Tax assessor clerk
- Payroll specialist
- PEIMS specialist
- High school bookkeeper
Why are these misclassifications common?
Employers may misclassify a job in an effort to avoid paying overtime, regardless of warning signs that a job isn’t exempt. Other times an employer may want to elevate the job “status” or thinks having a bachelor’s degree is an automatic qualifier for being exempt—it is not. In other cases, there is simply a lack of knowledge of the law. Such mistakes can be costly.
What are the risks?
The Wage and Hour Division (WHD) of the DOL annually provides detailed information on its extensive outreach and education efforts meant to educate both employees and employers alike to promote compliance. They report having conducted more than 18,500 outreach events in the past five years with 4,600 in 2020 alone. Additionally, their website provides around-the-clock service to both employers and employees, and they recently released an app for employees and employers to track their hours.
These outreach efforts have paid off as the WHD reports having helped more than 1.3 million workers over the last five years and recovered over 1.4 billion in back wages. While that is an average of “just” $1,077 per worker helped, it’s important to factor in the time and resources an employer must invest if investigated.
Specific guidelines for determining if a job is exempt can be found in the electronic code of federal regulations. TASB HR Services members can access more information in the HR Resource Library, including a table summarizing the most commonly applied exemption tests in public schools. Additionally, The Administrator's Guide to the Fair Labor Standards Act is available for purchase in the TASB Store.
Keith McLemore joined HR Services in 2015 and assists districts with compensation planning and development. He has 17 years of experience traveling the state supporting public education employees.
McLemore received a bachelor’s degree from Southwestern University and a master’s degree from Texas Tech University, both with a focus on research analysis and design. He is a SHRM-CP.
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