In recent years, employers have been plagued by claims that they have misclassified employees as exempt.  As the name implies, exempt employees do not receive overtime pay and are not subject to certain wage and hour laws. If a class action challenging employees’ exempt status is successful, the costs to a business can be staggering. Littler has developed a process that helps employers effectively prepare for and deal with misclassification claims. Littler Xmpt® equips management with an effective defense and creates a strong evidentiary record to either defeat an exemption challenge or mitigate the risks.

Common Problems in Exemption Litigation

With the continuing surge of wage and hour claims, exempt misclassifications have become one of the primary targets of plaintiffs’ lawyers and regulators – approximately 9,000 FLSA cases were filed in 2015.

Having handled countless misclassification claims, Littler has identified common issues that typically arise in these cases:

  • The plaintiffs deny having any decision-making responsibilities in an attempt to disavow any supervisory, administrative or professional classification.
  • The employer cannot readily provide business records of actual job responsibilities that can be used to impeach the plaintiffs’ testimony.
  • The employer and the plaintiffs disagree about the plaintiffs’ job duties.
  • Employers often lose exemption cases not because the position was misclassified, but because they lack sufficient evidence to contest the plaintiffs’ claims about the nature of their work.

Litigation Armoring™: A Common Sense Solution

Employers can minimize the risk of future litigation by creating evidentiary records that support the exempt status of employees. Littler can assist companies in litigation armoring – taking precautionary steps which will spare them the needless costs and disruption of their business operations that litigation brings.

Our analysis begins with some basic questions:

  • Which exempt positions are the most likely targets of litigation?
  • If a claim is filed, what evidence is available to support the claimed exemptions, and what evidence might be used by a plaintiff’s lawyer to undermine the exemption?
  • Does the existing evidence support the claimed exemption or does it suggest that the position may actually not be exempt?
  • How could the employer better document the exempt nature of the position so that the employer has the evidence it needs to meet its burden of proof?

What is Littler Xmpt?

From our many years of dealing specifically with wage and hour claims, Littler has developed an innovative process, implemented by an experienced team, that can help employers avoid potential claims and have a ready defense in the event of litigation.

Littler Xmpt provides several valuable services to our clients, including the following:

  • Day One Litigation Analysis, testing our position against litigation at other companies with similar position.
  • Builds a strong evidentiary record to defend against misclassification claims both prior to and during litigation.
  • Fortifies internal record-keeping policies.
  • Strengthens good faith defenses under federal law.

Littler’s team of lawyers has a wealth of experience in assisting employers with misclassification claims, enabling us to anticipate those positions that are the most vulnerable to litigation and to equip employers with the best strategy to fend off any legal action.

Littler Xmpt helps employers avoid potential claims and have a ready defense in the event of litigation.