I have an employee who has requested information on how we have deetermined the FLSA status for several positions in our company. Aside from raising the obvious eyebrows, the positions do not report to him nor is his amongst the listt he’s requested clarification. Of course this is a small unti of our business so there’s lots of chatter. Is there any requirement for us to disclose FLSA reasoning to a staff member if it is not their job or one of their report’s?
I agree with Patrick, I do not believe that you need to explain any business functions to any employee unless it is the employee’s position and he/she is questioning their classification than it might be prudent to expain to them how their classification was justified.
If I were HR in that company I would probably explain to the employee that unless we are talking about his position HR information is classified and you cannot discuss it with him.
While company may not have an obligation to disclose the precise rationale for wage and hour decision, given the presumption under FLSA law in favor of employee, and that he is now technically covered by anti-retaliation provisions of the statute, you might generally explain what process is used by company to analyze a position, compare to other job descriptions, in the context of FLSA and state regulations all of which are available on the internet. If an employee is snooping around, it is probably best not to antagonize by saying “none of your business,” as employer has burden to prove compliance with all of these regulations and this may be a good way of learning that employees are questioning business judgment in this regard.
I have an employee who lives in the state of California. He was offered a job in the state with the expectation of traveling 100%. He just so happens to travel during the week to Alaska. He resides in CA and pays state taxes to CA. He stays in a hotel during the week in Alaska. My question is, which state would cover him for employment, wage and hour law? California or Alaska or both? Basically, I want to know if California IWC exemption laws would be applicable.
I agree with the other posts that, in the scenario described, an employer has no obligation to share its reasoning process underlying classification decisions. However, since I’m a curious person by nature, I would ask the employee (in a non-aggressive way) why he’s asking for the information.
I agree with Patrick and the other respondents; you have no obligation to explain how exemption decisions are made, even if the employee is inquiring about his own status. On the other hand, I strongly agree with the points made by Ruth D. Raisfeld. While it is, in fact, none of this employee’s business, a tactful explanation as suggested by Ruth would be a better approach than a refusal to provide an answer to the employee’s question. If an employee actually does inquire about his/her own exemption classification, I recommend whatever explanation is needed to clear the air and to resolve any doubts or issues of the employee.
Other than explaining to an employee about his or her exemption status, neither the FLSA nor the Federal wage & hour regs have a requirement to explain to one employee the rational behind the classification of another employee. The reason to explain to an employee curious about his or her own status is to deal with a potential challenge by that employee. Pursuant to the most recent major amendments to the wage and hour regs, employers are advised by the DOL to encourage employees to bring any concerns to the employer before such employee files a complaint with the DOL or engages an attorney about perceived classification mistakes affecting that employee. Language to this effect can be put in an employee manual or some other notice format. Aside from the lack of any legal requirement for an employer to share such information on one employee with another employee, the employee whose status is being discussed could consider such discussion improper. On the other hand, if the curious employee wants to talk to the other employee and they willingly and mutually share information of this type, though I have not seen a specific case on the issue, their discussion is probably protected by the National Labor Relations Act and cannot be inhibited by the employer.
Stanley P. Santire
713-787-0405
I agree with the previous opinions, there is no FLSA/FairPay regulations requiring an employer to explain or justify exempt status decisions to employees. I believe the same is true of NY employment regulations. Now my questions are: 1) Is the employee questioning the rationale for positions that have been classified as exempt? 2) Does this employee have a history of disciplinary issues, questioning authority, stirring up issues with other employees, and/or union participation? 3) Has anything happened recently in the organization, industry, or geographic area (like a well-publicized class-action wage & hour lawsuit) that would cause the employee to question the exempt status of a group of employees? 4) If this behavior is unusual for this employee, what other unusual behavior is being exhibited, if any? 5) Is this employee familiar enough with HR and compensation to know, on his own, what questions to be asking about exempt status…if not, who is coaching him on what to say and ask for?
My thoughts are that the employee has recently spoken to an employment attorney and has been sent on a “fishing expedition” to gather info for a possible FLSA violation charge and the words “class-action” and “huge settlement” have been mentioned; this employee is a salt, or is being empowered by a union to gather dirt to make the organization look bad to potential bargaining unit members; or there are yet to be determined motives for the employee to be stirring this up. Regardless of the motivation or source, these actions are unsettling and will not likely play in the employer’s favor regardless of how it is handled.
I would strongly recommend documenting any/all conversations with this employee, or any employee requesting this type of information. I also recommend explaining the general process of determining the exempt status of a position (not employee) as prescribed by the DOL. Obviously, the more confident you are that the positions are correctly classified the more comfortable you may feel having this conversation. Finally, I would ask the employee, in a very careful and non-threatening way, why the employee is asking for these details. If you don’t get sufficient feedback from the employee, you may want to consider some level of internal investigation to see if there’s any more to the story.
If you have any additional questions we’re always here to help. .(JavaScript must be enabled to view this email address). Good luck!
The most recent post raised some interesting questions. Why is this employee requesting the information, and do they make habit of questioning company decisions? This could be something innocent, or they may have an agenda. They may have a friend or spouse working for another company who doesn’t trust their HR department well enough to ask them about his or her own position. They could be a salt, spying for a union or lawyer. You can’t really know, even if you ask them.
You didn’t say whether this is a recent hire or if they are a long-term employee, one you might be able to trust a bit more. I think your company culture should dictate your response. Is your organization open or closed? How freely is other business information shared with the non-managerial staff? If you normally share information regarding other ordinary business decisions, sharing some generic information about how job analysis is conducted might not be a problem. You can do this without discussing any specific positions at all, or you could make it perfectly clear to the employee that you will not discuss any position but his own.
Yes, I agree it is a confidential personnel matter and you are not obligated to discuss how you determined the exemption status of other employees. However, if you are claiming he is exempt under 29 CFR Part 541, he may be “questioning” his own exempt status by comparing the status of others that he feels are comparable positions or have comparable duties that you may have exempted or not exempted. Just a thought. I may have missed your point.
Mark Knuckles, SPHR
(former USDOL Wage Hour Investigator)
www.MarkKnuckles.com
No, you do not have to disclose that information to an employee. However, given the inquiry, you had better make sure your “ducks are in a row” with regards to classifying your employees as exempt vs. non-exempt.
Kevin McCoy
Kruchko & Fries
Management-Side Labor & Employment Law
1750 Tysons Boulevard
Suite 560
McLean, Virginia 22102
(703) 734-0554
(703) 734-0876 (fax)
As others have indicated, you are not required to disclose the methodology for determining other employees’ FLSA status. There are a couple of things to keep in mind in addressing the situation. First, the anti-retaliation provision of the FLSA states that it is unlawful to:
discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;
29 U.S.C. 215(a)(3). If the employee is inquiring or questioning his or her status under the FLSA, you should be careful in how you respond to the inquiry to avoid potential retaliation claims. A simple explanation would be in order. Second, to the extent that the employee is requesting information specific to other employees, it may be inappropriate to disclose the methodology for determining status if that methodology includes information related to the other employees’ compensation. An employee has a right to investigate and question their FLSA status. This right does not extend to questioning status on behalf of other employees (unless the other employees have solicited the assistance). Explain that the information related to other employees is confidential. If the other employees are concerned, they should be the ones asking for the information.
I think Mary C has some great points. Especially, the potential for a union salt issue.
Remember also that NLRA protects certain concerted activities even in a “non-union” environment. You might want to be aware and cautious of anything that impacts concerted activities for mutual aid and protection. It would be a wise investment to consider a review with licensed counsel familiar with labor issues, especially NLRA and union issues.
I agree with Ruth and believe others may be speculating too much about the motive of the individual.
Personal injury attorneys are advertising on television regarding overtime violations. The question may be a simple inquiry - or it may be a fishing expedition. I can understand why you would say, “None of your business,” because these positions have nothing to do with him. But to do this will probably make matters worse and may give the impression that you are hiding something.
The response should be “There are a number of ways in which a position can be determined to be exempt under the Fair Labor Standards Act and we go to great lengths to ensure that we are in compliance. I can not and will not go into specifics for every position, but rest assured that we have done our due diligence to ensure that our pay practices are in line with the guidelines.”
The next step would be to take a hard look at each of your exempt positions to ensure that they truly qualify as exempt.
