MANAGEMENT MOXIE Nimble News

2016 Position Classification Service

We know that employers throughout the country are feeling particularly vulnerable to employment law compliance and HR-related risk management this year. The new DOL regulations just added more weight to already overwhelming compliance obligations. Our clients and friends through the country have asked us what is the best approach to meet the new DOL rules. In response to those requests we have designed a flat fee classification service to help your team insure that all "exempt" positions comply with state and federal law.

View the Position Classification Process diagram

Why all the hype, and why pay a law firm for something you have always done in house?

  • The long-awaited and much-debated new "White Collar" regulations were issued on May 18, 2016, and become effective December 1, 2016.
  • In the event of a lawsuit, internal audits of exempt/non-exempt classifications can be used as evidence of a willful violation of the FLSA, which lengthens the statute of limitations from two to three years. The strongest protection is the careful use of the attorney-client privilege to protect the audit itself. Engaging human resources staff or consultants or even in-house counsel to conduct the audit will not allow the company to avail itself of the attorney-client privilege. By retaining outside counsel to perform this service, all findings are protected by Attorney-Client privilege.
  • The DOL has already set up field offices in every state and is conducting random audits. The fines associated with these audits are high, in addition to unpaid overtime, misclassification of employees can result in liquidated damages, equitable relief, and reimbursement of attorneys' fees.
  • The risk is not limited to the FLSA. Each state has its own unique employment laws. Some of these laws are consistent with the FLSA, other are not. State agencies and Attorney General's Offices also conduct audits and initiate lawsuits, compounding the risk to employers.
  • The new overtime regulations have given every employer a free opportunity to not just reclassify positions impacted by the new salary levels, but to correct positions that were improperly classified as exempt from the start. This is a unique and limited opportunity.

Paying an attorney hourly fees to conduct services like this is cost-prohibitive.

We understand! This is why we developed a flat fee Classification Service that provides our clients the benefit of an audit of job classifications, without the associated hourly fees.

To begin the service, we provide you with checklists and worksheets that carefully guide you through the process of creating and/or updating your job descriptions.

  • Job descriptions lay the groundwork for effective compensation, performance management and recruitment initiatives. Well written job descriptions also play a critical role in the defense against discrimination or wrongful termination claims.
  • The attached forms guide our clients through the process of updating job descriptions. This process trains your employees to create effective job descriptions, a skill that can be utilized going forward.
  • The ADA Elements Checklist and the 2016 Position Summary Form will help you create or update job descriptions. These forms provide a tremendous cost benefit. Use them to update your job descriptions regularly.

Forward a list of all employees including their job title/position and the up-to-date job/position description to Foley & Foley, PC.

  • We will look at each of your job descriptions to determine whether the employee's current exempt/nonexempt classification is appropriate. We will note questions and concerns regarding your classifications using the "redline" and "comments" features in Word. We may also follow up with you via telephone with questions or for clarification regarding essential functions, questions regarding reassignment of job duties, and ability to start tracking time.

We will conduct a telephone conference (typically one hour) to review the classifications.

  • The telephone conference will include the lead contact(s) for the client and the lead Attorney from Foley & Foley, PC. The conversation will be protected by the Attorney/client privilege.

You will finalize all pertinent forms for each job/position and each incumbent/employee based upon the advice and counsel provided by Foley & Foley, PC.

  • The completed forms will be placed in each incumbent's/employee's personnel file.
  • You will have the peace of mind that comes from knowing that your employees are correctly classified, and a legal opinion that the classifications are accurate.
  • You will also have ready-made documentation to provide to the DOL and/or corresponding state regulatory agency in the event of an Audit.
  • If we uncover mistakes or misclassifications, your knowledge of those findings are locked in the vault of Attorney-Client privilege and cannot be used against you.


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