Jeffrey M. Landes, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Law360, titled “7 Key Steps for FLSA Employee Classification Audits.” (Read the full version – subscription required.)
Following is an excerpt:
This article discusses how to audit employee classifications under the Fair Labor Standards Act. Determining whether an employee is exempt from the overtime requirements of the FLSA is not an exact science.
It depends on the particular duties performed by the employee and not, for instance, the employee’s job title or formal job description. Two employees occupying the same position (e.g., supervisor) may therefore have different classifications because of the scope of their actual job duties.
Although this practice note focuses on the situation where an attorney performs the audit, the tips also apply when an attorney advises an employer who has assigned a nonlawyer to conduct the audit. The last section of the note addresses preserving the attorney-client privilege in this latter situation.