When conducting an overtime exemption analysis, there are many pitfalls in the data collection process. For example, if you are by-passing the direct manager and going to a higher-level manager, you get less relevant information. This is because the manager will be further removed from that particular employee's job. This results in imperfect information. You also miss an opportunity for buy-in on the process by the direct manager. This lack of buy-in can result in pushback.

Another pitfall is just relying solely on the job descriptions. This doesn't necessarily give you the information you need. For example, it doesn't tell you the percentage of time spent on each duty. It also cannot confirm whether the person is really doing that job as the description implies. Court rulings on overtime exemption cases are based on the actual job performed, not on the description.

In a BLR webinar titled "Advanced Exemption Audits: Evaluate Your Overtime Classifications Now To Avoid Costly Trouble Later," Mary Topliff, Esq., outlined some information-gathering considerations and tips that may help you avoid the pitfalls described above.

To avoid these pitfalls:

• Determine who should conduct the analysis. Internal HR with in-house or outside counsel review is one option. Another option is an external specialist. If you use an attorney, the opinion is attorney-client privileged.
• Be sure to have a thorough understanding of the employee’s duties. It is insufficient to rely on a manager’s insistence of the importance of the job. Another data point that can be used is performance reviews.
• Determine the percentage of work time spent on specific duties.
• Be sure you understand how to determine whether the employee uses “discretion and independent judgment” to meet the exemption requirement. Do not simply ask: “does the employee exercise discretion and independent judgment?” Instead, ask definitional questions with specific examples.
• Collect data on hours worked by employees in question. Include information on travel time and whether or not the employee is eligible for production bonuses.

Mary Topliff, Esq. founded the Law Offices of Mary L. Topliff in San Francisco in 1997, after practicing civil and employment litigation for nine years. ( www.joblaw.com) The firm specializes in employment law counseling, training, and compliance, focusing on practical solutions to avoid costly legal issues. She has advised many organizations regarding overtime exemption analyses and strategies for minimizing the risk. Topliff is a published author and frequent speaker on legal issues impacting the workplace.