Question: How do I become an “exempt” employee? The Agency’s exempt employees get extra leave time and I think my job should be classified as exempt and that I should get this extra leave time too. The Agency says that I am hourly. What does the law say about who is exempt versus non-exempt? How do I go about getting reclassified as exempt? Is there a specific procedure? Do I have to file a grievance, or a lawsuit? Is this something my Association must bargain for during contract negotiations?
Answer: The Federal Fair Labor Standards Act sets the requirements for who is and who isn’t an exempt employee. Non-exempt employees must be paid overtime, but overtime pay for exempt employees is not required. If your job meets certain “tests” defining it as exempt, you may request that your agency redefine your position to be exempt. These tests include: 1. Minimum Salary. The employee must be paid a salary that is at least twice the state minimum wage for full-time employment. 2. White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks. 3. Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgment. 4. Computer-related employee who works in the computer field in which more than 50% of the time is spent doing programming and diagnostics.
Your Association can help you understand if your position meets the above tests and set a meeting with your agency to request a change in your status. You might also ask for the rules and benefits that apply to FLSA-exempt employees to be extended to you. Leave time isn’t dependent on FLSA status. Your Association may be able to negotiate more leave in the next MOU.
It’s possible to file a claim for unpaid overtime with the federal Department of Labor, but not for leave time. Claims are filed where an employee was mistakenly designated as exempt and denied overtime. There is no FLSA claim if you’re designated as non-exempt and paid overtime. Keep in mind the agency does not have to apply an exemption even if you meet the test. They do not have to provide the leave time unless it’s bargained for.