Worker Misclassification: Challenges of Determining Exempt vs. Non-Exempt Employees
Conducting Self-Audits, Identifying Vulnerabilities, Correcting Errors, and Minimizing Liability Under FLSA and State Law
About the Course
Introduction
This CLE course will guide employment counsel and employers on exemption misclassification issues, identifying positions that are most at risk for misclassification under the Fair Labor Standards Act (FLSA) and state law (particularly under the common "white collar" exemptions), conducting self-audits, and implementing measures to correct misclassification errors to minimize liability exposure such as ensuring businesses have appropriate safe harbor policies.
Description
Accurate employment classification continues to be the subject of extensive lawsuits. Recent cases regarding who is entitled to overtime pay fuel the litigation, and claims by employees challenging their classification as exempt from overtime pay under the FLSA are increasing.
Some federal suits have resulted in multi-million dollar verdicts as exemption cases are often filed as both class and collective action lawsuits. State lawsuits are also on the rise and state wage and hour laws are often more employee-friendly than the FLSA, particularly in states like California where they continue to be hotly litigated. In California, noncompliance exposes companies to individual Private Attorneys General Act (PAGA), other representative actions, and class action claims. There, wage and hour laws continue to multiply, with new laws, regulations, court decisions, and myriad changes to existing laws, impacting employer compliance obligations on a quickly evolving pace.
To avoid potential claims, employment counsel must advise employers to reexamine and, where necessary, adjust their worker classification practices.
Listen as our authoritative panel of employment attorneys examines the types of positions most at risk for misclassification as exempt, explains best practices for self-audits, and suggests measures employers should take to correct classification errors and limit liability exposure.
Presented By
Mr. Langhammer has over 35 years’ experience representing clients in all aspects of employment law and related litigation, including wage and hour class actions, Private Attorneys General Act (PAGA) claims, Fair Credit Reporting Act (FCRA) claims, and suits involving wrongful termination, discrimination, harassment, and retaliation, breach of contract and unfair business practices, and misappropriation of company trade secrets and proprietary information. He also counsels clients on a wide range of employment law matters, conducts wage and hour compliance audits and reviews, drafts employment policies and procedures, and provides human resources training. Mr. Langhammer represents corporate and business organizations, as well as nonprofit and charitable entities.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Wednesday, October 28, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Current legal trends, including the status of the "salary basis" rule and salary level under the FLSA and state laws
II. Positions most vulnerable for FLSA and state claims: how to determine the correct classification
A. Clerical and administrative support personnel
B. Assistant managers, supervisors, and team leaders without sufficient staff
C. IT workers
D. Sales staff
III. Self-audit strategies
A. Who should conduct an audit?
B. Reviewing pay practices and policies: overtime, bonuses, etc.
C. Comparing job descriptions against actual job duties
D. Reviewing new positions added after a merger or acquisition
E. Documenting the audit
IV. Correcting errors and limiting liability exposure
V. Establishing a compliance program
VI. Reclassifying positions to protect exemptions
VII. Considering whether to voluntarily pay back wages
VIII. Deciding whether to notify the DOL of any errors
IX. Preparing for state or federal regulatory inquiry into classification practices
The panel will review these and other key issues:
- Which positions are most often misclassified as exempt? How can employers and their counsel best determine the appropriate classification for such positions?
- What self-audit approaches are effective to identify and correct errors with a focus on compliance with the duties and salary basis tests, and protect the company from future liability?
- What are the legal risks of voluntarily paying back wages to misclassified employees? If such payments are made, how far should an employer go back, and should liquidated damages be included?
- Should employers take the initiative to notify the Department of Labor of classification errors discovered during self-audits? As private FLSA releases are generally not enforceable, what other measures can an employer take to minimize exposure to exemption claims?
Related Courses
Worker Misclassification: Challenges of Determining Exempt vs. Non-Exempt Employees
Wednesday, October 28, 2026
1:00 PM ET/10:00 AM PT
