Columbus partner Mike Asensio, who practices exclusively in the area of Management Labor and Employment Law, was quoted in the March 2009 edition of Columbus CEO magazine in the article, Wages, Hours & Lawsuits."
According to the article, if a company improperly classifies employees as exempt from overtime, they could end up facing a wage and hour lawsuit, which could result in having to pay back wages. A dispute can arise when an employee, or group of employees, believe they are incorrectly classified as "exempt," which means the employer is not required to pay those workers overtime for hours worked beyond 40 in a workweek. The U.S. Department of Labor (DOL) classifies exempt employees as those who work in executive, administrative or professional capacities.
Sometimes, an employer's first hint of trouble is the arrival of someone from the DOL, seeking information. According to Asensio, "More often than not, we get client calls when the DOL is at the door. Typically, they're gathering job descriptions, payroll records and scrambling to learn the facts of the case and their potential liability." Asensio continued, "Usually the DOL is tipped off by an individual making a compliance complaint. WHD [DOL's Wage and Hour Division] auditors come in and assess if the infraction was a one-time thing, or they may do a full-blown audit if they believe there's something more there."
According to the article, in the end, very few wage and hour cases actually go to trial. "As part of the audit, we want to conciliate the matter," Asensio said. "The company needs to change the classification or system to make it compliant. Back pay needs calculated. Then, depending on how egregious the DOL thinks the violations are, the agreement can provide for ongoing monitoring."