Deposition Questions
(FLSA Misclassification Action) (Plaintiff to Defendant)

Summary

These Deposition Questions are for a plaintiff's attorney to ask an employer's witness in a Fair Labor Standards Act (29 U.S.C. § 201 et seq.) (FLSA) action for misclassification of an employee as exempt from overtime. This template contains practical guidance and drafting notes. This template does not address all potential state law distinctions; thus, you should check relevant state and local laws and all applicable discovery rules. The deposition questions set forth in this template are only examples. You should tailor them to the allegations in each particular case. You should follow each question up with further inquiry as appropriate. The questions cover exempt professional, executive, administrative, computer, and outside sales job duties, as well as the misclassification of employees as independent contractors. The deponent is assumed to be either the employer's manager responsible for categorizing employees and job positions for overtime pay purposes, or the employer's designee under Fed. R. Civ. P. 30(b)(6) (Rule 30(b)(6)). For resources on employment litigation, see Employment Litigation Resource Kit. For a full listing of key content covering depositions in employment cases, see Depositions in Employment Cases Resource Kit. For more information on deposing Rule 30(b)(6) employer witnesses in employment cases, see Rule 30(b)(6) Rule 30(b)(6) Deposition Strategies for Employee-Plaintiffs in Employment Cases, Depositions: Preparing for and Taking a Deposition (Federal), Rule 30(b)(6) Deposition Strategies for Employer-Defendants in Employment Cases, Defending Depositions of Employer Witnesses in an Employment Litigation, Depositions in Wage and Hour Exemption Misclassification Cases: Employer Best Practices, Employment Litigation Discovery Resource Kit, and Employment Litigation Process Map: Discovery (Federal). For more information on classification under the FLSA, see White Collar and Sales Exemptions (FLSA) — Executive Employee Exemption, White Collar and Sales Exemptions (FLSA) — Professional Employee Exemption, White Collar and Sales Exemptions (FLSA) — Administrative Employee Exemption, White Collar and Sales Exemptions (FLSA) — Highly Compensated Employee Exemption, White Collar and Sales Exemptions (FLSA) — Computer Professional Employee Exemption, White Collar and Sales Exemptions (FLSA) — Retail Sales Section 7(i) Exemption, Non-White Collar Exemptions to Minimum Wage and Overtime Requirements under the FLSA, Motor Carrier Exemption and Other Exemptions to Overtime Requirements Only under the FLSA, Independent Contractor Tests and Risks of Worker Misclassification, Overtime Requirements for Hourly Non-Exempt Employees under the FLSA, and White Collar and Sales Exemptions (FLSA) — Combination Exemption. For a template, see Notice of Deposition (FRCP Rule 30(b)(6)) (Plaintiff to Defendant). For a checklist, see Deposing Employer Witnesses Preparation Checklist. [>] Videos. For a video suite on employment litigation depositions, see Depositions of Plaintiff Employees Video, Depositions of Supervisory Witnesses Video, and Depositions under Rule 30(b)(6) in Employment Cases Video.