THINGS TO CONSIDER BEFORE THE DOL COMES KNOCKING TONYA C. JORDAN SENIOR COUNSEL, LABOR AND EMPLOYMENT CONOCOPHILLIPS COMPANY Wage and Hour Litigation/Increased DOL Enforcement Activity

Offense or Defense? Last “comprehensive” internal position audit in 2004 DOL challenge on certain positions in one location in 2005 Stop and start efforts to audit a job site with use of internal HR resources Continued promises from the DOL in 2010 to increase enforcement activities related to misclassification issues

Manage Internally or Retain Outside Counsel? Depends on how comprehensive of a review you want to undertake. Important considerations:  Resources  Available information  Accessibility of information  Privilege

Issues/Challenges Available documentation Education and alignment with HR and management – at all levels Change management – do not underestimate the importance Prepare to meet with resistance from various sources and levels Maintain control of the flow and timing of communication Imperative to have credible and trustworthy interviewers Be adaptable and prepared for the “unknown”

Issues/Challenges Implementation and handover to HR Prepare to answer “why” the company is doing this Develop good tools (checklists) for supervisors who have not managed non-exempts before  Do not forget about “BYOD” implications Decide, with full management buy in, how to handle employee challenges to the reclassification decision  No back pay?  2 years back pay?  3 years back pay  Release?