Answers to tricky HR questions: He doesn’t hire or fire — is he nonexempt?
July 24, 2008 by Jim GiulianoPosted in: Answers to tricky HR questions, Employment law, FLSA, In this week's e-newsletter, Latest News & Views, Money, Pay and benefits
Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: An employee sits in on hiring interviews but doesn’t make the final decision. Is he exempt or nonexempt?
Question:
One of our employees sits in on hiring interviews and makes recommendations about whether to accept or reject candidates. He doesn’t make the actual hiring decision.
Since he doesn’t really do hiring and firing, is he categorized as nonexempt and thus eligible for overtime pay?
Answer:
The latest FLSA regs clearly state that people who make recommendations about hiring, firing or promotions meet one of the tests for being exempt, and such people are not eligible for OT pay.
That’s the advice of Michael Faillace, an employment-law attorney and frequent speaker at SHRM conferences.
Tags: exempt, FLSA, nonexempt, overtime, Pay and benefits
August 1st, 2008 at 12:18 pm
You need to check on the % this person works on making decisions before not paying OT.
August 25th, 2008 at 11:21 am
In California, at least 51% of the work must be exempt. If this employee does the work that others do, perhaps as a lead, but mostly the same work, he cannot be exempt.
November 5th, 2009 at 12:55 pm
You need to look at the other job responsibilities this person has. There are several qualifiers the FLSA outlines that will effect whether or not the person should be paid OT.