While worker classification is the last thing on people’s mind during a tragedy, the Boston Marathon attack triggered the question: Is it possible for an exempt employee to lose his or her status by performing non-exempt tasks during an emergency?
In general, the answer to that question is “No.” The DOL included an exemption to the Fair Labor Standards Act (FLSA) — Sec. 541.706 Emergencies — in the event of situations like the tragedy at the Boston Marathon.
‘Cannot reasonably anticipate’
The FLSA recognizes that there are a number of unusual circumstances that take place during an emergency that may require exempt employees to perform non-exempt job duties.
Because of this, an employee’s exempt status will not be affected even if that employee is performing non-exempt work — as long as the work is the result of an emergency, which is defined as a “rare occurrence that the employer cannot reasonably anticipate.”
As the DOL puts it, “An exempt employee will not lose the exemption by performing work of a normally non-exempt 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.”
Circumstance dictates non-exempt duties
Following its explanation of the Emergency exemption, the DOL offers a number of real-life examples, one of which can be applied to situations like the Boston Marathon tragedy.
According to the DOL: “Regular repair and cleaning of equipment is not emergency work, even when necessary to prevent fire or explosion; however, repairing equipment may be emergency work if the breakdown of or damage to the equipment was caused by accident or carelessness that the employer could not reasonably anticipate.”
So, if an exempt manager at one of the businesses located near the Boston Marathon bomb site spent the majority of his or her day cleaning up damaged store equipment. In addition to spending most his or her day doing non-exempt work, the manager may have stayed at work longer than usual to see this clean-up through until completion.
Because the FLSA exemption recognizes that unique circumstances require exempt employees to perform non-exempt work, the manager’s classification wouldn’t be impacted — and he or she wouldn’t be eligible for any overtime.
Of course, the emergency exemption applies only in extraordinary circumstances.
As you know, in general, exempt employees must:
- be paid at least $455 per week
- be paid on a salary basis, and
- perform exempt job duties.
The three most common categories of exempt job duties are “executive,” “administrative” and “professional,” and the FLSA is very specific on the criteria that must be met for employees’ job duties to fall under either of these exemptions.