Q: Is it possible to be exempt and non-exempt at the same time?
A: Many organizations unwittingly break federal and state laws by having managers work in non-exempt jobs for more than 20% of the week. That’s the key: if an employee spends more than 20% of any work week in non-exempt work, then s/he is non-exempt for that week or work period. For example, several organizations have their managers spend a full week every quarter or every six months stocking shelves or taking stock. These are definitely non-exempt responsibilities and, if the organization was trying to be in full compliance, they should pay overtime for any hours in excess of 40 worked during that week. And while, most managers don’t want to “rock the boat” or jeopardize their positions, the true challenge is that most managers and organizations rarely know or ever think about this provision of overtime laws.
Q: Is an employee protected by the FLSA anti-retaliation provision if s/he is discharged for making an internal complaint?
A: Yes. The FLSA regulates employee wages and work hours. It requires employers to pay employees a minimum wage and overtime compensation. The FLSA also contains an anti-retaliation provision which makes it unlawful to discharge or discriminate against any employee because they filed a complaint, but, you may say, the complaint was made internally, not to a governing body such as the DOL. The courts have made the following observations: Congress intended the anti-retaliation provisions of the FLSA to provide an incentive for employees to report wage and hour violations by their employers. The U.S. Supreme Court has previously stated that the FLSA is a remedial statute designed to protect the individual rights and, therefore, its provisions should be interpreted broadly. The anti-retaliation provision of the FLSA was created to prevent fear of economic retaliation for voicing grievances about substandard conditions, and limiting the scope of the anti-retaliation provisions would jeopardize the protection promised by the provision and discourage employees from asserting their rights.
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