5 Common FLSA (For Fire Departments) Violations & Ways to Avoid Them – Exempt vs. Non-Exempt (Part I of 5)

The Fair Labor Standards Act (FLSA) was originally implemented in 1938. The workplace has changed drastically since that time. Many of the most common FLSA violations reflect this transition. Modern technology has transformed the workplace in ways the original framers of the FLSA could not have imagined. As an employer, it is not always easy to stay ahead of the curve on some these issues, however it is essential that employers remain vigilant in efforts to stay compliant with the FLSA. This is the first of a five-part series outlining 5 very common FLSA violations and providing tips on how to stay out of the Courtroom.

• Employee Misclassification – Exempt vs. Non-Exempt (Part 1)
• Calculating Regular Rate Incorrectly (Remuneration) (Part 2)
• Failing to Keep Proper Records (Part 3)
• Failing to Pay Employees for all Hours Worked (Part 4)
• State Law Issues (Part 5)

Employee Misclassification – Exempt vs. Non-Exempt (Part 1 of 5)

The general rule is that all employees are entitled to FLSA overtime. That means employees, including firefighters are entitled to receive FLSA overtime. However, there are some employees that are exempt from the overtime and minimum wage requirements of the FLSA. Some of the most common exemptions are for executive, administrative, and professional employees. (Often referred to as the EAP exemptions.) Improperly classifying employees as exempt is one of the most common and costly FLSA mistakes an employer can make.

Very often an employer will classify an employee as exempt based solely upon the job title or description. For example, are Chief officer’s exempt in your organization? If you answered yes, is that determination based on the Chief’s actual job duties? Are Captain’s exempt in your organization? If you answered no, is that determination based on rank or title alone? These are the kinds of questions that employers need to ask. Job descriptions, titles, rank, or even collective bargaining will not serve as a bar from FLSA liability. The employer must carefully evaluate each employee and make the appropriate classification.

First, always remember the general rule; “all employees are entitled to FLSA overtime.” Next, carefully evaluate each employee to determine if they qualify for an exemption. The Department of Labor (DOL) lists the criteria necessary to be considered FLSA exempt. (It is important to emphasize; the employer bears the burden of proving the employee meets the requirements of the exemption.) Finally, continually monitor the duties and salary of all employees, especially exempt employees, to maintain compliance. Remember, the employee that was exempt yesterday may not be exempt tomorrow. Operational and budgetary changes within your organization may produce new FLSA liability!