TIP 1: If you consider any workers “exempt,” be prepared to prove the reason for their exempt status.
Federal law presumes that all employees are non-exempt unless the employer can prove on a case-by-case basis that a particular employee qualifies for one of the precise exemptions. Under this presumption, employers are required to pay at least the applicable minimum wage for all hours worked, pay overtime of 1.5 times an employee’s regular rate of pay for all hours worked over 40 in each workweek, and maintain an accurate record of the employee’s hours worked. Conversely, if an employee is exempt, the employer is not required to pay overtime nor maintain a record of the employee’s hours worked.
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TIP 2: Maintain an accurate record of hours worked by non-exempt staff.
Federal law puts the burden of maintaining time records for non-exempt employees on the employer. The law does not prescribe the form of the time record. However, records should be an accurate account of all the hours actually worked by each non-exempt employee. Time records should reflect the actual times the employee begins work and ends work in the morning and afternoon. They should not appear to be rounded or to include just a total number of hours worked or scheduled for the day.
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TIP 3: Don’t assume that the administrative exemption covers all workers who do Clerical tasks.
The “administrative” exemption is an exemption that may be available in a dental practice. Just doing clerical or administrative duties does not qualify an employee for this exemption. To qualify for this exemption, an employee must be paid on a salary basis of at least $455 per week, perform office or non-manual work directly related to management or the employer’s business operations, and exercise independent judgment or discretion about matters of significance. Receptionists or billing clericals who simply apply standard procedures or protocols do not meet the standard for this exemption. This exemption may be available on a case-by-case basis, depending on the employee’s pay and actual duties.
Part Two of this series will follow.
D. Albert Brannen is a partner and team manager at Fisher & Phillips LLP, a law firm that represents employers across the country in labor, employment, employee benefits, safety, health, business immigration and civil rights matters. Read more at Martindale.com.
