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Labor Department: Exempt Employees Do Not Lose Status Under FLSA if Performing Non Exempt Duties During the Pandemic


Last week, the Labor Department issued guidance on the question of whether exempt workers under the Fair Labor Standards Act (“FLSA”) lose their exempt status if they also perform non exempt tasks during the coronavirus pandemic.

Taking a step back, the FLSA provides that workers can be either exempt or non exempt, depending upon their work responsibilities.  Generally speaking, if the worker is exempt, they are not entitled to overtime pay under the FLSA.  If the worker is non exempt, they could potentially qualify for overtime pay if they worked more than 40 hours in a workweek.  The issue that has arisen as of late is how employers are to proceed during the coronavirus pandemic, given that some workplaces have cut their labor force in an effort to make ends meet.  In doing so, that often entails the workers that remain to pick up the slack and assume additional responsibilities.  In some workplaces, that may involve an exempt worker (for instance, one that is primarily engaged in administrative tasks) to now do basic filing, answering of phones, sorting through mail, etc.  Those additional tasks might be deemed non exempt.  As a result, there is often concern over whether that exempt employee would now be classified as non exempt under the FLSA.

Last week’s guidance from the Labor Department sought to remedy the concern by stipulating that salaried executives, administrative, and professional employees that are exempt under the FLSA remain exempt, even if they are now performing some non exempt duties during the coronavirus pandemic.  Employers can breathe a sigh of relief if they were dangerously toeing the line, although the Labor of Department has clarified that this guidance is only really in place during the coronavirus pandemic.  Once that starts to subside, I would expect this guidance to change.



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