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Exercise Caution When Classifying Administrative Assistants As Exempt from FLSA Overtime Requirements

    Client Alerts
  • April 03, 2009

When faced with claims for unpaid overtime compensation, some white collar employers claim that they do not employ any secretaries.  Instead, these employers argue that all employees in traditional secretarial positions are actually exempt Administrative Assistants.  Unfortunately, employers that attempt this argument usually learn how narrow the true exemption for Administrative Assistants has become.

In 29 C.F.R. § 541.103(d), the Department of Labor’s Wage and Hour Division sets forth an example of an exempt Administrative Assistant position.  The job is described as an assistant to an owner or senior executive of a large corporation.  To meet the exemption test, the employee must be delegated, without specific instructions, authority on matters of significance to the business.

This definition eliminates many Administrative Assistant positions often claimed as exempt.  First, Wage and Hour will not extend the exemption beyond the assistants to the few top executives in the corporation.  For medium-sized businesses, this exemption will usually not apply beyond the President’s or CEO’s assistant.  Second, the assistant’s primary job duties cannot be those traditionally considered to be clerical secretarial work.  Thus, an Administrative Assistant who primarily types, files, or makes travel arrangements will not qualify as exempt regardless of his/her boss.

Truly exempt Administrative Assistants are special assistants to the top executives of the company, who are responsible for special projects delegated to them.  This could include planning and arranging for board or shareholder meetings, negotiating and arranging for the executive’s speaking opportunities, or other non-clerical tasks performed without close supervision.

For all other secretarial employees, the employer must keep accurate records of hours worked, and pay overtime when the employee works more than 40 hours in a given workweek.  Employers should scrutinize all claimed Administrative exempt positions to make certain that the jobs truly meet these limited tests.