There are certain industries or fields where misclassification issues are prevalent because the nature of the duties of the workers “seems” to smack of exempt work but then there is a doubt as to whether they truly meet all of the elements of the exemption(s). A recent example of this tension is the FLSA collective action filed by a number of social services workers who claim that they are non-exempt and due overtime. The case is entitled Ellenberger et al. v. JusticeWorks Youthcare Inc., and was filed in federal court in the Western District of Pennsylvania.

The employees, including classifications such as case managers, family resource specialists and ongoing case specialists, claim that their duties, such as collecting data and coordinating client care were not exempt duties and, therefore, they are owed overtime. They claim that these routine duties involved them following corporate guidelines and procedures and thus, they were not exercising discretion and independent judgment, which is an essential element of the administrative exemption.

The employer has contracts to provide social services to many entities in Pennsylvania counties. The Complaint alleges that the entity falls within the statutory definition of an “employer” as it controls the terms and conditions of employment of these employees. The Complaint alleges that the “defendant is aware or should have been aware that the FLSA required it to pay collective action members overtime.”

There has been a good deal of litigation on the exempt status of these kinds of workers. Ten years ago, the Ninth Circuit Court of Appeals held that social workers with only a BA or BS degree, as opposed to a Masters Degree, did not come within the definition of the professional exemption in the FLSA. In this regard, the website for the Company shows that some of the case management positions only call for an associate or bachelor’s degree.

The Takeaway

The kinds of duties claimed to be performed by these workers would not require the discretion and independent judgment necessary for the administrative exemption. I do believe, however, that possession of a degree in social work or a related discipline gives the employer a good chance of demonstrating that the professional exemption applies. In any event, the employer must argue that the employees fall under either one of, or a combination of, these two exemptions.

After all, whatever works…

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