Are You an Exempt Employee?
A Look at the FSLA
An exempt employee is not subject to the minimum wage and overtime requirements of the U.S. Federal Labor Standards Act (FLSA), as opposed to a non-exempt employee, who is protected by the provisions of that federal law. The FLSA mandates that employers must pay most workers the Federal or state minimum wage (whichever is higher). They must also compensate them at a rate of at least one and a half times their regular hourly wages for any time worked above 40 hours per week.
How to Tell If You Are an Exempt Employee
Do you find yourself working more than 40 hours a week without seeing extra money in your paycheck? Are you earning less than the federal minimum wage of $7.25 per hour or your state's minimum wage if it is higher? Your employer may have classified you as an exempt employee.
According to the Wage and Hours Division of the U.S. Department of Labor, only "bona fide [genuine] executive, administrative, professional, computer, and outside sales employees" who meet certain requirements are exempt from the minimum wage and overtime requirements of the FLSA. It's that "bona fide" that stumps some people, including maybe your employer. They incorrectly believe that job title alone determines whether a worker is exempt or non-exempt, but earnings and job duties must also come into play. Executive, administrative, professional, computer, or outside sales workers are usually exempt from the FLSA, but only if their salaries and job duties meet particular specifications.
If your job title is one of the ones listed above, look at your most recent paycheck. Is your weekly salary at least $455? If it is, do you meet the other criteria for each title:
Your job title may be "manager, " but if your duties don't meet all the FLSA's requirements for an executive employee, you may be entitled to overtime pay and the minimum wage. Ask yourself the following questions:
- Does your job mostly consist of managing the company or a department?
- Do you supervise at least two full-time employees?
- Can you hire or fire workers, or, at least, contribute to the decision to do so?
If you have answered "no" to just one of these questions, your employer must pay you the minimum wage and overtime.
Respond to these two questions to find out if the FLSA would classify you as an administrative employee:
- Do you primarily perform office work that directly relates to the business operations of your employer or its customers?
- Do you use judgment when making decisions about important matters?
If you don't do either of these things, it is time to talk to your boss about your rights as a non-exempt employee.
There are two types of professional employees: learned and creative. Your job must fall into one of these three categories if your boss considers you a learned professional who is exempt from the FLSA:
- Your work must be intellectual in nature.
- It must be in a field of science or learning.
- Your training must have taken place through specialized study in law, accounting, engineering, or another field typically considered to be a profession.
As a creative professional who is ineligible for overtime pay and the minimum wage, your work must involve invention, originality, or talent in a recognized creative or artistic field such as writing, music, performing arts, or graphic arts.
Are you a computer systems analyst, computer programmer, or computer software engineer, or do you work in another computer science occupation that requires similar skills? Those who do aren't usually subject to minimum wage or overtime pay laws, but to be sure, answer the following questions:
- Do you apply systems analysis techniques and procedures?
- Do you consult with computer users to determine specifications?
- Do you design, develop, analyze, create, test, and modify computer systems and programs?
If your answers to at least two questions are "yes," you are probably an exempt employee.
Outside Sales Employee
Some sales representatives are entitled to earn at least the minimum wage and overtime pay, but others are not. If the following statements are both true, you won't be seeing anything additional in your paycheck whether you work 40 hours a week or 80.
- You sell goods or services for which clients or customers pay.
- You mostly work outside your employer's primary place of business.
Are There Exceptions to the Rules?
Even if you meet some of the criteria that make you a non-exempt employee, don't march into your boss's office to demand extra money yet. There's one more thing that may identify you as an exempt employee and cut short your dreams of a bigger paycheck.
"Highly compensated employees" aren't covered by the overtime provisions of the FLSA. If your salary is at least $100,000 annually and your job involves performing office duties and non-manual work the FLSA considers you an exempt employee. The only way to earn a higher salary is to ask for a raise.
Some Workers Are Never Exempt
Blue collar workers and first responders are never exempt from the minimum wage and overtime provisions of the FLSA. Blue collar workers use their hands, physical skills, and energy to do their jobs. They include construction workers, electricians, carpenters, and reinforcing iron and rebar workers. First responders are police officers, firefighters, and paramedics.
Disclaimer: Please note that the information contained on this page as well as elsewhere on this website is for guidance, ideas, and assistance only. Dawn Rosenberg McKay makes every effort to offer accurate advice and information on this site, but she is not an attorney. Therefore, the content published here is not to be construed as legal advice. Employment laws and regulations vary by location so check government resources or legal counsel when in doubt about your particular situation.