Pub. 10 2019 Issue 4

Winter 2019 11 West Virginia Banker misclassification suits pose significant risks because employees can band to- gether in class or collective actions and seek recovery of unpaid overtime com- pensation, an additional equal amount in liquidated damages, and their attorneys’ fees. Banks have been a frequent target of regulators and private plaintiffs in such suits; a recent study of public- ly-available settlements and judgments found that, since the year 2000, three of the top five most-penalized corporations for wage and hour violations were large financial institutions. 3 An in-depth discussion of wage and hour audits is beyond the scope of this article. However, all employers should be aware of the following general guidelines when determining if their employee classification decisions are legally defensible: • Employees are not exempt from overtime just because they are paid a salary. Many employers mis- takenly believe that an employee is exempt from overtime protection so long as the employee is paid the minimum salary required by the DOL’s regulations. However, an employee is only exempt from over- time if the employee’s actual job is to perform exempt work. Paying a salary is only one part of the test. • Job titles and descriptions are in- formative but are not controlling. While jobs titled “administrative as- sistant” or “human resources man- ager” may sound like exempt posi- tions, job title alone is not sufficient to prove that an employee is prop- erly classified as exempt. Similarly, job descriptions may not necessarily reflect the actual job responsibilities of a particular employee or may not adequately identify the primary job duties of that employee. • An employer’s policies and guidelines may affect whether an employee is exempt. Certain exemptions require that employees have the authority to exercise dis- cretion and independent judgment in performing their job duties. If an employee’s discretion and judgment are limited by the employer, the employee may not actually perform exempt work even if similar employ- ees working for different employers are correctly treated as exempt. • An employee’s actual day-to-day job duties control. In all instances, what an employee actually does at work will determine if an employee is properly classified as exempt. An employee is only exempt if that employee actually performs exempt work. In many instances, an employ- er may need to interview its employ- ees about their work responsibilities and habits in order to determine if that employee can be treated as exempt from overtime protection. Ultimately, the question of whether an employee has been properly treated as exempt from overtime pay depends upon the specific facts and circumstances applicable to that employee and the work environment of the employer. Employers who are unsure whether their pay prac- tices meet the requirements of the FLSA and state law should consult an experi- enced attorney for further guidance.  1 The complete text of the DOL’s final rule is available at https://www.federalregister.gov/ d/2019-20353/p-758. 2 The new rule also makes special salary changes for workers in the U.S. territories and the motion picture industry, but those changes are not discussed in this article. 3 See Philip Mattera, Grand Theft Paycheck: The Large Corporations Shortchanging Their Workers’ Wages, Good Jobs First (June 2018), available at https://www.goodjobsfirst.org/wagetheft. About the author: Attorney J. Tyler Mayhew is a partner in the Martinsburg, West Virginia office of Bowles Rice LLP. He focuses his practice on labor and employment law and commercial litigation and regularly advises employers on human resources matters, compliance issues and employment policies. He has successfully defended employers from employee discrimination & harassment claims, misclassification claims, wage and hour claims, deliberate intent claims and wrongful termination claims. He is admitted to practice in both West Virginia and Virginia and can be reached directly at (304) 264-4209 or by email at tmay hew@bowlesrice.com. While jobs titled “administrative assistant” or “human resources manager” may sound like exempt positions, job title alone is not sufficient to prove that an employee is properly classified as exempt.