Aside from guidance on the use of 1099 Independent Contractors, exempt vs. non-exempt employee classification is perhaps the most popular topic amongst fitness business owners that our HR team fields here at GYM HQ. Tracking and keeping accurate records of employee time can be a substantial administrative burden; so the draw to pay someone a salary and throw caution to the wind is strong! It’s also very enticing to demand work of a team member in excess of 40 hours a week (or 8 hours a day in California) without the need to pay them additional compensation. Today we review the vital steps for employee classification to keep you in compliance and out of hot water.
Are they an employee?
First, let’s tackle the question of 1099 Independent Contractor vs. W2 Employee. Review our previous article for guidance on that topic here. Spoiler alert, I’d wager you have yourself an employee.
Salary Basis & Threshold
Next, let’s talk pay. Employees must be paid on a salary basis and at not less than $455 per week or two times the state’s minimum wage, whichever is higher, to qualify for an exemption.
Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period. The predetermined amount can’t be reduced because of variations in the quality or quantity of the employee’s work. Subject to the exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to illness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or final week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
Once you’ve determined that the employee’s compensation passes the salary basis and level tests, your next step is to take a look at their regular duties.
The employee should fit squarely into one of the exemption categories below:
For the executive exemption, employees must have a primary duty of managing the business or a department or subdivision of the company; must customarily and regularly direct the work of at least two employees; and must have the authority to hire or fire, or their suggestions and recommendations as to the hiring, firing or changing the status of other employees must be highly considered.
For the administrative exemption, employees must have a primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and their primary function must include the exercise of discretion and independent judgment with respect to matters of significance.
For a professional exemption, employees must have a primary duty of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged, specialized, intellectual instruction and study, or must specialize in a few other similarly, highly specialized fields, such as teaching, computer analytics, and engineering. Aside from a select few members of a corporate team (legal, accounting, etc.), this exemption is rare in the fitness industry.
An Assistant Fitness Manager may be one of several employees who direct the day-to-day activities of other team members but may have no discretion as to whether to hire or fire employees. He may spend more than half of his time selling training packages, assisting members, or doing other routine tasks that require little or no discretion and independent judgment. Even if he were to meet the requirements of the salary basis and salary threshold tests, he would not qualify for an exemption because he would not meet the duties test requirement.
A General Manager oversees the entire club’s operations (often with little interaction from ownership for days on end). She is tasked with managing the entire staff (hiring, firing, coaching, scheduling) and making decisions which significantly impact the business. Though she may also engage in sales or menial administrative or manual tasks (cleaning, paperwork, etc.), she clearly passes the duties test under two both the executive and administrative exemption.
Owners often wonder what the consequences would be if they are found to be misclassifying their team members. There is a litany of legal cases which point to how severe and costly these consequences can be. In 2011 Levi Strauss agreed to pay over $1 million in back pay to 596 (12%) of its employees who were improperly classified and therefore not paid overtime. In 2014 US Bank settled a misclassification suit for $1.9 million. After seven years of litigation, 24 Hour Fitness settled a misclassification case in 2013 for $17.4 million. They’d previously settled another wage and hour class action in 2006 for $38 million. These figures and cases are tied to very large businesses, and it’s sometimes challenging for a single club owner to correlate that to the impact he’d see for his company. Here’s the easiest way to look at it, when has anything involving hiring a lawyer or law firm ever been less than costly? Wage and hours claims are one of the most common for small businesses and aside from any money paid out to the claimant, are very costly to defend. How much are you comfortable dishing out to defend a claim? How sure are you that you have a strong defense? Is your team currently classified correctly? As the old adage says, “An ounce of prevention is worth a pound of cure.” Or in this case, an ounce of preparation (doing things right starting now) is worth a pound of defense.