Are you Exempt from FLSA overtime laws?

WARNING: Statutory analysis is very complicated, even for lawyers. If you have any question that you may be improperly categorized as an exempt employee, contact an FLSA lawyer in your area or in Tennessee contact attorney Morgan Smith and Morgan will help author a legal opinion on your status.

To determine if your employer is required to pay you overtime under the FLSA, you must determine if you are “exempt” or “nonexempt.”

Workers who fall under the FLSA are either “exempt” or “nonexempt.” If you are a nonexempt employee, you are entitled to overtime pay. If you are an exempt employee, you are not entitled to overtime pay. This determination must be done by your attorney in order to determine if you are entitled to overtime pay for working in excess of forty hours per week.

Certain jobs are directly exempt under the statute, such as professionals. Some jobs are more confusing. For example, an “outside sales” employee is exempt, but an “inside sales” employee is nonexempt. Other times, your status as exempt or nonexempt depends on how much you are paid, whether you are paid salary or hourly, and what kind of work you do on a daily basis.

How much you make matters if your employer is trying to say you are an exempt employee who is not entitled to overtime pay. You must be paid at least $23,600 per year or $455 per week on a salaried basis. You must also perform exempt job duties as outlined by the FLSA regulations.

If you are a salaried employee making more than $455 per week, you must next determine if your job duties are exempt. How do you know? By reading the very complex regulations. You can read about it here at the Department of Labor website. Generally speaking though, you the following job duties make persons exempt:

The Executive Exemption
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; and
• 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.
Administrative Exemptions
To qualify for the administrative 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 office or non-manual work directly related to
the management or general business operations of the employer or the employer’s customers; and
• The employee’s primary duty includes the exercise of discretion and independent judgment with respect
to matters of significance.
SOURCE: www.dol.gov

The Professional Exemption
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; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction.
To qualify for the creative 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 invention, imagination,
originality or talent in a recognized field of artistic or creative endeavor.
Source: www.dol.gov

The 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 of:
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 design
specifications;
3) The design, documentation, testing, creation or modification of computer programs related to
machine operating systems; or
4) A combination of the aforementioned duties, the performance of which requires the same level of
skills.
Source: www.dol.gov

The Outside Sales Exemption
To qualify for the outside sales employee exemption, all of the following tests must be met:
• The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or
contracts for services or for the use of facilities for which a consideration will be paid by the client or
customer; and
• The employee must be customarily and regularly engaged away from the employer’s place or places of
business.
Source: www.dol.gov

The Highly Compensated Employees Exemption
Highly compensated employees performing office or non-manual work and paid total annual compensation of
$100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the
FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative
or professional employee identified in the standard tests for exemption.
Source: www.dol.gov

Blue Collar Workers Are Non-Exempt
The exemptions provided by FLSA Section 13(a)(1) apply only to “white collar” employees who meet the
salary and duties tests set forth in the Part 541 regulations. The exemptions do not apply to manual laborers or
other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill
and energy. FLSA-covered, non-management employees in production, maintenance, construction and similar
occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers,
longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay
under the FLSA, and are not exempt under the Part 541 regulations no matter how highly paid they might be.
Source: www.dol.gov

The Police, Fire Fighters, Paramedics & Other First Responder’s are Non-Exempt
The exemptions also 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.
Source: www.dol.gov

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