American Airlines FCU of Fort Worth, Texas paid nearly $83,000 in back wages to nearly 300 current and former employees in 2011 following a DOL investigation.

There are three basic exemption categories, Brewer said: professional, executive and administrative. Professional and executive are pretty straight forward, but the administrative category is full of gray areas, he said. Job titles, such as marketing specialist or loan officer, don't determine classification. The paramount issue in determining classification, Brewer said, is the amount of discretion the employee has in performing day to day duties. “Basically, to be exempt, an employee has to operate somewhat independently, without being directed each hour on the job,” he said. Other factors Brewer listed include the ability to hire and fire staff, and the ability to write or change procedures that effect the organization.

Authority supervising other staff is another litmus test. Brewer offered branch employees as an example. A teller is non-exempt, he said, because he or she would have no discretion regarding work duties each day. However, a head teller, who has some authority over other tellers, could potentially be exempt.

Branch managers would be more likely to be classified as exempt, he said, because they have authority over employees and can write and interpret policies, and make managerial decisions as part of their job.

Lynn Athens, vice president of human resources for the California and Nevada Credit Union Leagues, said determining classification for employees who don't have direct reports is tricky.

“I'd look at other criteria, like control over a budget or the ability to write policy for the organization,” she said.

On its website, the U.S. Department of Labor said that to qualify for the administrative exemption, employees must primarily perform office work directly related to management or general business operations, and “exercise discretion and independent judgment with respect to matters of significance.”

Athens said the size of a credit union also comes into play.

“If you're doing marketing for a credit union with only four employees, you're probably in charge of your own budget and setting policies everyone else has to follow, which could make you exempt,” she said, “whereas a marketing specialist in a credit union with a five-person marketing department would not.”

Other exempt categories include computer employees, which could include IT staffers, and outside sales exemptions, which could include business development officers.

Brewer said although the classification question isn't a new legal issue, he thinks credit unions will see more lawsuits on the topic, “especially when we're in a down economy where employees are looking for any reason in the world, right or wrong, to increase their income.”

The $151 million Emery FCU of Cincinnati was hit with a Fair Labor Standards Act suit Jan. 11 after a loan officer claimed she was improperly classified as exempt. The $4 billion Patelco Credit Union of Pleasanton, Calif., is also facing a similar suit in which plaintiffs claim it misclassified dozens of assistant branch managers.

American Airlines FCU of Fort Worth, Texas paid nearly $83,000 in back wages to nearly 300 current and former employees in 2011 following a DOL investigation.