Allen Kato discuss the exemption checklist in a BLR webinar entitled ‘High-Tech Workers: Who’s Entitled to Overtime and Who’s Not; Avoid the Top 5 Most Common Mistakes’. He explains the exemption checklist can help employers properly classify individuals. It is the obligation of the employer to properly classify the individuals associated with the company as either exempt or non-exempt. This will determine if the individual can or cannot be paid overtime. It is not legally possible to have an entire workforce of exempt workers.

If the worker is an employee, the employer has the obligation to properly classify the worker, i.e. should not be exempt from overtime by default. Usually, if an employee brings a discrimination lawsuit, the employee has the burden of proof. However, under the wage and hour law, it is the employer’s burden to prove that the organization was right with respect to its workers classification. The following information should also be noted about job descriptions:

• There is the importance of documenting the written job description that lists the actual and essential job duties which will decide exemption status
• Also, use the job description for the job posting
• Use the job description for setting job performance goals and performance evaluations
• Audit the job description at least every two years for changes in duties

Allen M. Kato, Esq., is an attorney in the San Francisco, California office of law firm Fenwick & West, LLP (www.fenwick.com). His practice concentrates exclusively on representing management in wage and hour, equal employment opportunity, unfair competition and trade secret matters, and privacy matters; and litigating individual and class action wage and hour, wrongful discharge, employment discrimination, and unfair competition matters before courts and agencies. He also trains managers and HR professionals on a regular basis.