Most jobs are governed by the FLSA. However, some jobs are
excluded from FLSA coverage by statute. Other jobs, while
governed by the FLSA, are considered "exempt" from
the FLSA overtime rules, meaning that employees who qualify
as “exempt” are not entitled to receive overtime
Exclusions from FLSA coverage
Particular jobs may be excluded from coverage under the FLSA
overtime rules. There are two general types of FLSA exclusion.
Some jobs are specifically excluded in the statute itself.
For example, employees of movie theaters and many agricultural
workers are not governed by the FLSA overtime rules.
Another type of exclusion is for jobs which are governed by
some other specific federal labor law. As a general rule,
if a job is governed by some other federal labor law, the
FLSA does not apply. For example, most railroad workers are
governed by the Railway Labor Act, and many truck drivers
are governed by the Motor Carriers Act, and not the FLSA.
Many of FLSA exclusions are found in §213 of the FLSA.
Salary level test
Employees who are paid less than $23,600 per year ($455 per
week) are non-exempt, meaning they are entitled to receive
overtime pay. (Employees who earn more than $100,000 per year
are almost certainly exempt.)
Salary basis test
Generally, an employee is paid on a salary basis if he/she
has a "guaranteed minimum" amount of money he/she
can count on receiving for any work week in which he/she performs
"any" work. This amount need not be the entire compensation
received, but there must be some amount of pay the employee
can count on receiving in any work week in which the employee
performs any work. Some "rules of thumb" indicating
that an employee is paid on a salary basis include whether
an employee's base pay is computed from an annual figure divided
by the number of paydays in a year, or whether an employee's
actual pay is lower in work periods when he/she works fewer
than the normal number of hours. However, whether an employee
is paid on a salary basis is a "fact," and thus
specific evaluation of particular circumstances is necessary.
Whether an employee is paid on a salary basis is not affected
by whether pay is expressed in hourly terms, but whether the
employee has a guaranteed minimum amount of pay he/she can
count on, regardless of the number of hours the employee works
in a particular pay period.
With some exceptions, the base pay of a salaried employee
may not be reduced based on the quality or quantity of work
performed. This usually means that the base pay of a salaried
employee may not be reduced if he/she performs less work than
normal, if the reason for that is determined by the employer.
For example, a salaried employee's base pay may not be reduced
if there is no work to be performed’ Likewise, a salaried
employee's base pay may not be reduced for partial day absences.
However, employers may dock the base pay of salaried employees
in full day increments for disciplinary suspensions, personal
leave, or sickness under a bona fide sick leave plan.
Thus, there can be "permissible" and "impermissible"
reductions in salary basis pay. Permissible reductions have
no effect on the employee's exempt status. Impermissible reductions
may alter the employee’s pay basis and could change
his classification to “non-exempt” (eligible to
receive overtime pay). However, employers have several avenues
by which they can cure impermissible reductions in salary
basis pay, and as a practical matter these make it unlikely
that an otherwise exempt employee would become non-exempt
because of salary basis pay problems. The salary basis pay
requirement for exempt status does not apply to some jobs
(for example, doctors, lawyers and schoolteachers are exempt
even if the employees are paid hourly).
The duties tests
An employee who meets the salary level tests and also the
salary basis tests is exempt from overtime pay only if he/she
also performs exempt job duties. These FLSA exemptions are
limited to employees who perform relatively high-level work.
Whether the duties of a particular job qualify as exempt depends
on what they are. Job titles or position descriptions are
of limited usefulness in this determination. What matters
is what an employee actually does on a daily basis, not what
the his/her job title is. The actual job tasks that must be
evaluated, along with how the particular job tasks fit into
the employer's overall operations.
FLSA overtime exemptions
There are a number of exemptions under the FLSA that have
to do with the duties that employees perform and their roles
in their organizations. Specifically, as detailed below, these
exemptions are for "executive", "administrative"
and "professional" employees, among others.
To qualify for the executive employee exemption, all of the
following tests must be met:
- The employee must be compensated on a salary
basis (as defined in the regulations) at a rate not less
than $455 per week
- The employee’s primary duty must be
managing the enterprise, or managing a customarily recognized
department or subdivision of the enterprise
- The employee must customarily and regularly
direct the work of at least two or more other full-time
employees or their equivalent
- The employee must have the authority to hire
or fire other employees, or the employee’s suggestions
and recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees
must be given particular weight
Supervision means what it implies, overseeing
the work of others. The supervision must be a regular part
of the employee's job, and must be of other employees. Supervision
of non-employees does not meet the standard. The "two
employees" requirement may be met by supervising two
full-time employees or the equivalent number of part-time
employees. (Two half-time employees equal one full-time employee.)
In addition to supervisory responsibilities, the supervisory
employee must have "management" as the "primary
duty" of the job. The FLSA Regulations contain a list
of typical management duties. These include (in addition to
- interviewing, selecting, and training employees
- setting rates of pay and hours of work
- maintaining production or sales records
(beyond the merely clerical)
- appraising productivity; handling employee
grievances or complaints, or disciplining employees
- determining work techniques
- planning the work
- apportioning work among employees
- determining the types of equipment to be
used in performing work, or materials needed
- planning budgets for work
- monitoring work for legal or regulatory
- providing for safety and security of the
Determining whether an employee has management
as the primary duty of the position requires case-by-case
evaluation. A rule of thumb is to determine if the employee
is in charge of a department or a subdivision of the enterprise.
Typically, only one executive employee is in charge at any
An employee may qualify as performing executive job duties
even if he/she performs a variety of "regular" job
duties as well. For example, the manager at a retail store
may in reality spend most of the shift doing things that subordinate
employee are also doing. He is, however, still in charge of
the operation even when he is not delegating to subordinates
or managing operations. In the event that some "executive"
decisions are required, the manager is there to make them,
and this should be sufficient to make him exempt from overtime
under the “executive” exemption.
The final requirement for the executive exemption is that
the employee has genuine input into personnel matters. This
does not require that the employee be the final decision maker
on such matters, but rather that the employee's input is given
"particular weight." Usually, it will mean that
making personnel recommendations is part of the employee's
normal job duties, that the employee makes these kinds of
recommendations frequently enough to be a "real"
part of the job, and that higher management takes the employee's
personnel suggestions or recommendations seriously.
The most challenging of the definitions
of exempt job duties concerns the "administrative"
exemption. To qualify for the administrative exemption, all
of the following tests must be met:
- The employee must be compensated on
a salary or fee basis (as defined in the regulations) at
a rate not less than $455 per week
- The employee’s primary duty must be
the performance of office or non-manual work directly related
to the management or general business operations of the
employer or the employer’s customers
- The employee’s primary duty includes
the exercise of discretion and independent judgment with
respect to matters of significance
The administrative exemption
is designed for relatively high-level employees whose main
job is to "keep the business running." A useful
rule of thumb is to distinguish administrative employees from
"operational" or "production" employees.
Employees who make what the business sells are not administrative
employees. Administrative employees provide "support"
to the operational or production employees. They are "staff"
rather than "line" employees.
Examples of administrative functions include labor relations
and personnel (human resources employees), payroll and finance
(including budgeting and benefits management), records maintenance,
accounting and tax, marketing and advertising (as differentiated
from direct sales), quality control, public relations (including
shareholder or investment relations, and government relations),
legal and regulatory compliance, and some computer-related
jobs (such as network, internet and database administration).
To be exempt under the administrative exemption, the work
must be office or non-manual and must concern matters of significance.
Clerical employees perform office or non-manual support work
but are not administratively exempt. Administratively exempt
work typically involves the exercise of “discretion”
and “independent judgment,” with the authority
to make decisions on matters which affect the business as
a whole or a significant part of it. In other words, it is
the ability to choose between various alternatives independently
without having to check with superiors or conform to a narrow
range of choices.
The type of duties might include whether the employee has
the authority to formulate or interpret company policies;
how major the employee's assignments are in relation to the
overall business operations of the enterprise (buying paper
clips versus buying a fleet of delivery vehicles, for example);
whether the employee has the authority to commit the employer
in matters which have significant financial impact; whether
the employee has the authority to deviate from company policy
without prior approval.
An example of administratively exempt work could be the buyer
for a department store. He/she performs office or non-manual
work and is not engaged in production or sales. The job involves
work which is necessary to the overall operation of the store
-- selecting merchandize to be ordered as inventory. It is
important work, since having the right inventory (and the
right amount of inventory) is crucial to the overall well-being
of the store's business. It involves the exercise of a good
deal of important judgment and discretion, since it is up
to the buyer to select items which will sell in sufficient
quantity and at sufficient margins to be profitable.
While clerical work may be administrative, it is not exempt.
Most secretaries, for example, may accurately be said to be
performing administrative work, but their jobs are not usually
exempt. Similarly, preparing routine reports, answering telephones,
making travel arrangements, working on customer "help
desks," and similar jobs are not likely to be high-level
enough to be administratively exempt. Many clerical workers
do in fact exercise some discretion and judgment in their
jobs. However, to render an employee overtime exempt the exercise
of judgment and discretion must be about matters of considerable
importance to the operation or the enterprise as a whole.
Routinely ordering supplies (and even selecting which vendor
to buy supplies from) is not likely to be considered of such
significance to qualify the employee for administratively
exempt status. There is no "bright line" test. The
issue requires a close and comprehensive review of an employee’s
overall duties and responsibilities.
The job duties of the traditional "learned professions"
are exempt. These include lawyers, doctors, dentists, teachers,
architects, clergy. Also included are registered nurses (but
not LPNs), accountants (but not bookkeepers), engineers (who
have engineering degrees or the equivalent and perform work
of the sort usually performed by licensed professional engineers),
actuaries, scientists (but not technicians), pharmacists,
and other employees who perform work requiring "advanced
knowledge" similar to that historically associated with
the traditional learned professions.
Professionally exempt work means work which
is predominantly intellectual, requires specialized education,
and involves the exercise of discretion and judgment. Professionally
exempt workers must have education beyond high school, and
usually beyond college, in fields that are distinguished from
(more "academic" than) the mechanical arts or skilled
trades. Advanced degrees are the most common measure of this,
but are not absolutely necessary if an employee has attained
a similar level of advanced education through other means
(and perform essentially the same kind of work as similar
employees who do have advanced degrees).
To qualify for the learned professional employee exemption,
all of the following tests must be met:
- The employee must be compensated on a salary
or fee basis (as defined in the regulations) at a rate not
less than $455 per week
- The employee’s primary duty must be
the performance of work requiring advanced knowledge, defined
as work which is predominantly intellectual in character
and which includes work requiring the consistent exercise
of discretion and judgment
- The advanced knowledge must be in a field
of science or learning
- The advanced knowledge must be customarily
acquired by a prolonged course of specialized intellectual
Some employees may also perform "creative
professional" job duties which are exempt. This classification
applies to jobs such as actors, musicians, composers, writers,
cartoonists, and some journalists. It is meant to cover employees
in these kinds of jobs whose work requires invention, imagination,
originality or talent; who contribute a unique interpretation
Identifying most professionally exempt employees is usually
pretty straightforward and uncontroversial, but this is not
always the case. Whether a journalist is professionally exempt,
for example, or a commercial artist, will likely require careful
analysis of just what the employee actually does.
Computer Employee Exemption
To qualify for the computer employee exemption,
the following tests must be met:
- The employee must be compensated either
on a salary or fee basis (as defined in the regulations)
at a rate not less than $455 per week or, if compensated
on an hourly basis, at a rate not less than $27.63 an hour
- The employee must be employed as a computer
systems analyst, computer programmer, software engineer
or other similarly skilled worker in the computer field
performing the duties described below
- The employee’s primary duty must consist
1) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware,
software or system functional specifications;
2) The design, development, documentation, analysis, creation,
testing or modification of computer systems or programs,
including prototypes, based on and related to user or system
3) The design, documentation, testing, creation or modification
of computer programs related to machine operating systems;
4) A combination of the aforementioned duties, the performance
of which requires the same level of skills.
Police, Fire Fighters, Paramedics &
Other First Responders
The exemptions do not apply to police officers, detectives,
deputy sheriffs, state troopers, highway patrol officers,
investigators, inspectors, correctional officers, parole or
probation officers, park rangers, fire fighters, paramedics,
emergency medical technicians, ambulance personnel, rescue
workers, hazardous materials workers and similar employees,
regardless of rank or pay level, who perform work such as
preventing, controlling or extinguishing fires of any type;
rescuing fire, crime or accident victims; preventing or detecting
crimes; conducting investigations or inspections for violations
of law; performing surveillance; pursuing, restraining and
apprehending suspects; detaining or supervising suspected
and convicted criminals, including those on probation or parole;
interviewing witnesses; interrogating and fingerprinting suspects;
preparing investigative reports; or other similar work.
Rights of exempt employees
Exempt employees have virtually no rights under the FLSA overtime
rules. About all an exempt employee is entitled to under the
FLSA is to receive the full amount of the base salary in any
work period during which he/she performs any work (less any
permissible deductions). Nothing in the FLSA prohibits an
employer from requiring exempt employees to "punch a
clock," or work a particular schedule, or "make
up" time lost due to absences. Nor does the FLSA limit
the amount of work time an employer may require or expect
from any employee, on any schedule. ("Mandatory overtime"
is not restricted by the FLSA.) Keep in mind that this discussion
is limited to rights under the FLSA. Exempt employees may
have rights under other laws or by way of employment policies
Rights of Non-exempt employees
Non-exempt employees are entitled under the FLSA to time and
one-half their "regular rate" of pay for each hour
they actually work over the applicable FLSA overtime threshold
in the applicable FLSA work period.
Other Laws & Collective Bargaining Agreements
The FLSA provides minimum standards that may be exceeded,
but cannot be waived or reduced. Employers must comply, for
example, with any federal, state or municipal laws, regulations
or ordinances establishing a higher minimum wage or lower
maximum workweek than those established under the FLSA. Similarly,
employers may, on their own initiative or under a collective
bargaining agreement, provide a higher wage, shorter workweek,
or higher overtime premium than provided under the FLSA. While
collective bargaining agreements cannot waive or reduce FLSA
protections, nothing in the FLSA or the Part 541 regulation
relieves employers from their contractual obligations under
such bargaining agreements.
| About the Fair
Labor Standards Act
Under the FLSA |
Dozier Law Group represents clients in and around the Atlanta
metro area, including Alpharetta, Fairburn, Roswell, Sandy
Springs, Decatur, Lithonia, Druid Hills, Dunwoody, Tucker,
Marietta, Smyrna, Vinings, Duluth, Acworth, Fayetteville,
Marietta, Kennesaw, Lawrenceville, Norcross, Chamblee, Snellville,
Woodstock, Gainesville, Morrow, Carrollton, College Park,
Peachtree City, Riverdale, Newnan, Conyers, Covington, Canton,
Milton, John's Creek, Stockbridge, McDonough, Douglasville and other cities throughout the state of Georgia.