| Can an exempt position
become nonexempt?
Q. A nonexempt employee was given the duties of an exempt employee upon the
exempt employee's retirement. The nonexempt employee had been acting in this
capacity for over four years. Does the employer lose the ability to classify
this position/employee now as exempt? Is there a time limit?
A. Generally, it is not the employee who determines whether a job is exempt
from the Fair Labor Standards Act (FLSA); it is the tasks being performed in the
job that do or do not warrant the exemption.
You did not mention
what tasks the previous employee was performing when he or she left the company.
It could be this employee had been performing tasks that warranted the exemption
status. When the employee left the company, it is possible that the company
could no longer justify the position as exempt.
Companies often get
into trouble when they have exempted a job from the FLSA when the job does not
meet the requirements for exemption under the law. In such a case, the company
may have to pay an employee overtime incurred while performing the job while
being treated as exempt. These payments could be retroactive.
So I would
encourage you to ask your HR representative why the FLSA status changed when the
previous employee left the company.
Good
luck.
Erisa Ojimba, Certified Compensation Professional
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