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recruiters / account executives administrative exemption

Administrative Exemption Applies to Some But Not All Recruiters and Account Executives 

Several significant California cases on the exemption issue, which were recently decided, make it clear that while some recruiters and account executives can be properly classified as exempt, others should be treated as hourly employees (i.e. entitled to overtime for hours worked in excess of 8 hours per day or 40 hours per week, meal breaks / rest breaks, etc.). Like with other professions, whether exemption applies to a particular recruiter very much depends on the specific duties of that employee. 
  
Some duties are common among all recruiters. Recruiting, evaluating and interviewing candidates to be placed as employees, attending various recruiting functions, and participating in networking events are generally considered non-exempt, non-managerial duties, but the inquiry cannot stop here, because other factors matter is well in making this exemption determination. The following key four factors would determine whether a recruiter can be properly classified as exempt (in addition to the general exemption test): 

1. Does a recruiter / account executive actually make staffing / hiring recommendation? If so, exemption is more likely to apply because these duties are considered managerial. And, the more important a recruiter's hiring recommendation is to the actual decision to hire, the more likely he is to be considered an exempt manager. 
2. Does a recruiter supervise the candidates hired in their work performance for the client? If so, an exemption is more likely to apply, because supervising others is a managerial task. 
3. Who sets key recruiting policies? The more freedom recruiters have in their schedule and the manner they go about recruiting candidates, the more likely they are to be properly classified as exempt. On the other hand, if the company has set policies of template-like process that recruiters have to follow, this would favor the non-exempt status. 
4. If a recruiter negotiates salary and benefits with the candidates and has significant authority to do so, an exemption is more likely to apply, because making financial decisions is considered an administrative / managerial tasks.   

The two key cases that analyze recruiter exemption and can help understand the above distinction in greater detail are (1) Pellegrino v Robert Half International, Inc. (employees were found to be non-exempt and employer lost); and (2) Andrade v Aerotek, Inc. (employees were found to be properly classified as exempt and employer won). 


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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case