Virtually all of the FLSA exempt/non-exempt status disputes we see involve claims by employees that they were improperly classified as exempt when they were actually entitled to overtime pay. We recently faced the opposite situation where an employee claimed that the company violated her rights by classifying her as non-exempt when she allegedly qualified as FLSA exempt.

The situation involved an employee who was approved for ADA accommodations, including a periodic reduced daily schedule (the employer is not subject to the FMLA). When the employee ran out of paid leave, she complained that the employer was deducting the partial day absences from her pay. She claimed that if she had been classified as exempt, she would have received her full salary because the FLSA would have prohibited deductions for partial day absences.

Had the employer reclassified her for the purpose of deducting from her pay, she might have a plausible claim of ADA discrimination or retaliation. However, in this case, the company had classified the position as non-exempt even before the employee disclosed any medical issues. She alleged that the FLSA requires employers to claim the exemption if the employee meets the applicable duties test.

We quickly concluded that the position was properly classified as non-exempt; and the FLSA does not require employers to claim a potentially available exemption. If the company prefers to consider the employee as non-exempt, it is free to do so if it records working time and pays overtime where required. Although a creative argument, federal wage laws will not lock employers into paying full-time wages to a part-time worker.

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