if a position was miss classified as being hourly when it should be exempt, can you re-classify the position?

In a word, yes. Exemptions from overtime apply to the workweek, are based on an employee's duty, compensation and other facts set by statute and regulation, and can change from one week to another, if the facts allow. So, if you change duties or method of payment from one week to the next, you can change the employee's exempt status. If you are not taking advantage of an exemption for which the employee qualifies now, you can begin to exempt the employee from overtime the next workweek, notwithstanding prior classification.

Be aware that you and your employees do not determine exempt and non-exempt status. The Department of Labor and the courts do that. You can, however, evaluate each employee's duties, compensation and other facts that bear on their exempt status, and classify them accordingly, You should seek the assistance of an experienced employment lawyer when you do this.

posted by Neil Klingshirn  |  Jan 21, 2015 3:16 PM [EST]