Kevin Sullivan, Associate in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in SHRM.org, in “Rely on Interviews, Not Job Descriptions, for FLSA Audits,” by Allen Smith.
Following is an excerpt:
Dissatisfaction among workers who believe they've been misclassified as exempt from overtime may prompt an employer to conduct a Fair Labor Standards Act (FLSA) audit to determine whether the employees are performing exempt-level duties.
Audits should have the appropriate scope, find out what workers' duties really are through interviews with employees rather than relying on job descriptions, and result in changes to classifications or job duties, experts say. …
HR’s Role …
Kevin Sullivan, an attorney with Epstein, Becker & Green in Los Angeles, recommended instead that an attorney prepare scripted questions for HR to ask and supervise the audit at the attorney's direction so the answers are protected by the attorney-client privilege.
An employer should not conduct an audit of exempt employees' classifications unless it is committed to acting upon the results of the audit, Robinson said. Decisions that need to be made in response to an FLSA audit typically include whether to:
- Reclassify certain positions without modifications to the duties.
- Change the duties of certain positions such that reclassification is unnecessary.
- Provide back pay to reclassified individuals.
The employer also must consider whether it's at risk of employees bringing a class action, Sullivan observed.