Can’t we just make everyone exempt? It would be so much easier! Employers would not have to worry about overtime budgeting or the details of whether their employee is on or off the clock when they make a request. And most employees would happily trade in their time card for a set salary, schedule flexibility and just the ability to be considered exempt.

It seems everyone wins. However, the Federal Labor Standards Act is pretty clear on what type of position can be exempted from overtime rules and many of us our pushing those guidelines to their limits. Here are a few common traps and tips for how to avoid — or rectify — them.

Discretion

One of the most common liberties most employers take when classifying nonexempt positions as exempt is using the administrative exemption. Office managers, executive assistants, and other general support roles that directly report to or support an executive are often nonexempt roles that would arguably be much easier for the employee and the employer if they were exempt from overtime. Because of this, both sides often agree to the exempt status without a second thought.

This is fine until it is not. On many, many occasions I have worked with clients whose previously exempt office manager decides she should have been nonexempt.

Whether she did not get a raise and then realizes overtime would be more lucrative or for any number of reasons, she may have a case regarding misclassification and as soon as a government agency decides to investigate, it becomes an all-consuming situation from which anyone rarely comes out happy.

To avoid any such issues, the best thing to do is work with HR (or employment counsel if there is no HR) to establish a job description that clarifies not just what the job does but how often. In other words, even if the description indicates an exempt role, be sure that the daily duties, time spent on those duties and perception of the role are consistent with that description.

Technology

Another very common issue with exemption compliance is who uses what technology and how. Specifically, even if an employee is classified as nonexempt, we must pay them accurately for all time.

Thus, even if we have overcome the burden of having a nonexempt office manager, we still have to make sure we are not undermining her success by interacting with her as if she is exempt.

For example, it is not uncommon for a nonexempt office manager or executive assistant to have a cellphone on which an exempt executive can contact her. While this technological tool makes operations so much more efficient, if that nonexempt employee is texting with you about work after work hours, she should be paid. Similar pay issues can arise if a nonexempt employee has a company laptop, logs in via a VPN or in any way connects with and conducts work while she is not in the office (or is on break).

While it may be challenging, the easiest way to avoid such issues is not to provide those tools to nonexempt employees outside of work hours. However, if that is not practical, then be sure to work with HR, payroll or employment counsel to establish what activities count as work and how to track them for pay purposes.

The bottom line is, most of us are not trying to shortchange our employees. Take a minute to review internal practices and work with experts to ensure our intentions align with our practices and the law.