When Emergencies Call for Non-Exempt Work

By: Nathaniel M. Jordan, J.D.

Due to COVID-19 infections, precautions, and governmental directives, employers have experienced an upheaval in the manner in which they run their businesses and manage their employees. This has led to employee layoffs, furloughs, forced leave, and the like. And it has led to other employees performing duties they don’t normally perform. If this means that employees normally exempt under the Fair Labor Standards Act (FLSA) wind up doing a lot of nonexempt work, what happens to their exemption? Fortunately, the exemption might not be lost.

The FLSA provides exemptions from minimum wage and overtime requirements for any employee employed in a “bona fide executive, administrative, or professional capacity.” To qualify, such an employee’s “primary duty” must qualify as exempt work. For example, a learned professional’s primary duty must be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Meaning, for example, that an accountant must primarily do accounting work to be exempt. The FLSA doesn’t have a hard rule about the percentage of time such an employee must perform exempt work, but the more nonexempt work the employee does, the likelier the employee will not be considered exempt. Emergencies can scuttle this calculus, when exempt employees must roll up their sleeves and perform manual work or other work that nonexempt employees normally perform. So when several employees are absent because of sickness or self-quarantine, and the accountant must then handle general office work that doesn’t normally qualify as exempt, does the exemption go away?

The FLSA is prepared for this emergency. One regulation states, “An exempt employee will not lose the exemption by performing work of a normally nonexempt nature because of the existence of an emergency. Thus, when emergencies arise that threaten the safety of employees, a cessation of operations, or serious damage to the employer’s property, any work performed in an effort to prevent such results is considered exempt work.” In comments to this rule, the Department of Labor stated, “The Department agrees…that emergencies arising out of an employer’s business and affecting the public health or welfare can qualify as emergencies under this section[.]”

Accordingly, where an otherwise exempt employee has taken on nonexempt work duties under emergency circumstances brought on by the COVID-19 epidemic, the FLSA emergency exception might save the exemption. However, the longer the situation continues, and the longer that exempt employees must engage in more nonexempt work, the more that employers might need to reconsider whether job duties have permanently changed.

For more FLSA and COVID-19 information: https://www.dol.gov/agencies/whd/flsa/pandemic

If you have questions about this article, contact a member of Yoder Ainlay Ulmer & Buckingham’s employment law practice group at (574) 533-1171.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.

©  Yoder Ainlay Ulmer & Buckingham, LLP [March 25, 2020]