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Q&A: We have an employee claiming they shouldn’t be classified as exempt from overtime … what are the penalties for mis-classification?

Question:

We have an employee claiming they shouldn’t be classified as exempt from overtime. If it turns out they’re right, what are the penalties for misclassification?

Answer from Kara, JD, SPHR:

The cost of misclassification will depend on several factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, how the misclassification is discovered, and how your employees react to it.

Generally, if an employee goes to the federal Department of Labor and says they have been misclassified, the DOL will investigate, and they will very likely look at all your employee classifications. Any employee who the DOL determines should have been paid overtime in the last two years will be found to have been underpaid, and the organization will owe that money to the employee now (or three years’ worth if the misclassification is found to be “willful”). The organization will also owe them liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization will owe them $4,000. The organization will also owe taxes on those wages and interest on those taxes.

Additionally, many states have their own overtime laws, and in most cases the organization can be held liable under both federal and state law, meaning not only would the employee be owed double under the FLSA, but also any liquidated damages under state law (which could easily triple the original amount). And if you are in a state with late payment penalties, you could owe up to 30 days’ worth of the employee’s pay on top of the already discussed damages. There’s also a very good chance that the organization will be held liable for any related attorney’s fees – both your own and the employee’s.

Finally, there are potential federal civil penalties of $1,894 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. As soon as the judgment  is rendered in favor of the employee, statutory interest will begin to accrue on the amount owed – generally 10% per year.

The costs associated with misclassification are steep. But we can help! The HR Support Center is chock full of guides and training that can help you ensure that all your employees are properly classified. Start by checking out our 2-Minute HR Trainings on the White Collar Exemptions, which are the most widely used among our clientele.

Picture of Kara, JD, SPHR

Kara, JD, SPHR

Kara practiced employment law for five years before joining us, and worked in Human Resources for several years prior to that. As an attorney, she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.

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