We have a highly structured job classification plan. We have an opening for a “senior” position in a division and would like to offer the opportunity to the person with the next highest seniority on a trial basis to “see if he can do the job”.
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We are proposing to give him a 3 month trial period in which he will do the higher level duties and if successful, will then promote him to the higher salary group and higher pay. Should we be concerned about not paying him for the higher level duties during the “trial period”? This is an exempt position.
If you are certain this position is exempt, and there is no chance of this worker falling below the applicable minimum wage at any time during this trial period, then it would appear this arrangement is permissible from a wage/hour standpoint.
However, you should spell out in a written agreement, signed by both the employee and a representative from the employer, the specifics of the trial period, including the applicable dates and what happens if the employee will not in fact be promoted to the new position on a permanent basis following the trial period.
Finally, if this worker is in any kind of protected category and this trial arrangement is less favorable than what other workers have received in the past, you will need to be sure there are no grounds for a possible bias claim down the line.