HRCare - Exemptions From Minimum Wage and Overtime

Federal Law > Managing Employees > Exemptions From Minimum Wage and Overtime

Exemptions From Minimum Wage and Overtime

The Department of Labor, Wage and Hour Division, announced a Final Rule focused primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. For more information, see http://www.dol.gov/whd/overtime/final2016/. The effective date of the final rule is December 1, 2016. However, this rule has been temporarily enjoined by a federal court in Texas. You should contact your legal counsel on how best you should proceed, depending on your particular circumstances.

This section provides general information on the rules regarding exemptions from minimum wage and overtime pay provided by the Fair Labor Standards Act.

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees.

To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the Department of Labor's regulations.

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.

Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

Management
Generally, "management" includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

Department or Subdivision
The phrase "a customarily recognized department or subdivision" is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function.

Customarily and Regularly
The phrase "customarily and regularly" means greater than occasional but less than constant; it includes work normally done every workweek, but does not include isolated or one-time tasks.

Two or More
The phrase "two or more other employees" means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three or more employees, but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers.

Particular Weight
Factors to be considered in determining whether an employee's recommendations as to hiring, firing, advancement, promotion or any other change of status are given "particular weight" include, but are not limited to, whether it is part of the employee's job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. Generally, an executive's recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include occasional suggestions. An employee's recommendations may still be deemed to have "particular weight" even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status.

Exemption of Business Owners
Under a special rule for business owners, an employee who owns at least a bona fide 20-percent equity interest in the enterprise in which employed, regardless of the type of business organization (e.g., corporation, partnership, or other), and who is actively engaged in its management, is considered a bona fide exempt executive.

ADMINISTRATIVE EXEMPTION

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.

Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

Directly Related to Management or General Business Operations
To meet the "directly related to management or general business operations" requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example from working on a manufacturing production line or selling a product in a retail or service establishment. Work "directly related to management or general business operations" includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.

Employer's Customers
An employee may qualify for the administrative exemption if the employee's primary duty is the performance of work directly related to the management or general business operations of the employer's customers. Thus, employees acting as advisors or consultants to their employer's clients or customers — as tax experts or financial consultants, for example — may be exempt.

Discretion and Independent Judgment
In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term must be applied in the light of all the facts involved in the employee's particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval, and other factors set forth in the regulation. The fact that an employee's decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.

Matters of Significance
The term "matters of significance" refers to the level of importance or consequence of the work performed. An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee's duties may cause serious financial loss to the employer.

Educational Establishments and Administrative Functions
The administrative exemption is also available to employees compensated on a salary or fee basis at a rate not less than $455 a week and whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. Employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system, and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities.

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.

CREATIVE PROFESSIONAL EXEMPTION

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.

Invention, Imagination, Originality or Talent
This requirement distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. Exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Whether the exemption applies, therefore, must be determined on a case-by-case basis. The requirements are generally met by actors, musicians, composers, soloists, certain painters, writers, cartoonists, essayists, novelists, and others as set forth in the regulations. Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent. Journalists are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product.

Recognized Field of Artistic or Creative Endeavor
This includes such fields as, for example, music, writing, acting and the graphic arts.

TEACHERS

Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers.

PRACTICE OF LAW OR MEDICINE

An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine.

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.

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption.

Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

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.

The salary requirements of the regulation do not apply to the outside sales exemption. An employee who does not satisfy the requirements of the outside sales exemption may still qualify as an exempt employee under one of the other exemptions allowed by Section 13(a)(1) of the FLSA and the Part 541 regulations if all the criteria for the exemption is met.

Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

Making Sales
"Sales" includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.

Obtaining Orders or Contracts for Services or for the Use of Facilities
Obtaining orders for "the use of facilities" includes the selling of time on radio or television, the solicitation of advertising for newspapers and other periodicals, and the solicitation of freight for railroads and other transportation agencies. The word "services" extends the exemption to employees who sell or take orders for a service, which may be performed for the customer by someone other than the person taking the order.

Customarily and Regularly
The phrase "customarily and regularly" means greater than occasional but less than constant; it includes work normally done every workweek, but does not include isolated or one-time tasks.

Away from Employer's Place of Business
An outside sales employee makes sales at the customer's place of business, or, if selling door-to-door, at the customer's home. Outside sales does not include sales made by mail, telephone or the Internet unless such contact is used merely as an adjunct to personal calls. Any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitation of sales is considered one of the employer's places of business, even though the employer is not in any formal sense the owner or tenant of the property.

Promotion Work
Promotion work may or may not be exempt outside sales work, depending upon the circumstances under which it is performed. Promotional work that is actually performed incidental to and in conjunction with an employee's own outside sales or solicitations is exempt work. However, promotion work that is incidental to sales made, or to be made, by someone else is not exempt outside sales work.

Drivers Who Sell
Drivers who deliver products and also sell such products may qualify as exempt outside sales employees only if the employee has a primary duty of making sales. Several factors should be considered in determining whether a driver has a primary duty of making sales, including a comparison of the driver's duties with those of other employees engaged as drivers and as salespersons, the presence or absence of customary or contractual arrangements concerning amounts of products to be delivered, whether or not the driver has a selling or solicitor's license when required by law, the description of the employee's occupation in collective bargaining agreements, and other factors set forth in the regulation.

SALARY BASIS REQUIREMENT

To qualify for exemption, employees generally must be paid at not less than $455 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. Exempt computer employees may be paid at least $455 on a salary basis or on an hourly basis at a rate not less than $27.63 an hour.

Being paid on a "salary basis" means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work. Subject to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employer makes deductions from an employee's predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a "salary basis." If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.

Circumstances in Which the Employer May Make Deductions from Pay

Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

Effect of Improper Deductions from Salary
The employer will lose the exemption if it has an "actual practice" of making improper deductions from salary. Factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to: the number of improper deductions, particularly as compared to the number of employee infractions warranting deductions; the time period during which the employer made improper deductions; the number and geographic location of both the employees whose salary was improperly reduced and the managers responsible; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions. If an "actual practice" is found, the exemption is lost during the time period of the deductions for employees in the same job classification working for the same managers responsible for the improper deductions.

Isolated or inadvertent improper deductions will not result in loss of the exemption if the employer reimburses the employee for the improper deductions.

Safe Harbor
If an employer (1) has a clearly communicated policy prohibiting improper deductions and including a complaint mechanism, (2) reimburses employees for any improper deductions, and (3) makes a good faith commitment to comply in the future, the employer will not lose the exemption for any employees unless the employer willfully violates the policy by continuing the improper deductions after receiving employee complaints.

You may view a sample Safe Harbor Policy from the "Sample Forms & Handbook Policies" section of HR Care®.

Fee Basis
Administrative, professional and computer employees may be paid on a "fee basis" rather than on a salary basis. If the employee is paid an agreed sum for a single job, regardless of the time required for its completion, the employee will be considered to be paid on a "fee basis." A fee payment is generally paid for a unique job, rather than for a series of jobs repeated a number of times and for which identical payments repeatedly are made. To determine whether the fee payment meets the minimum salary level requirement, the test is to consider the time worked on the job and determine whether the payment is at a rate that would amount to at least $455 per week if the employee worked 40 hours. For example, an artist paid $250 for a picture that took 20 hours to complete meets the minimum salary requirement since the rate would yield $500 if 40 hours were worked.

HIGHLY COMPENSATED EMPLOYEES

The regulations contain a special rule for "highly-compensated" workers who are paid total annual compensation of $100,000 or more. A highly compensated employee is deemed exempt under Section 13(a)(17) if:

The employee earns total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis;
The employee's primary duty includes performing office or non-manual work; and
The employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.

Thus, for example, an employee may qualify as an exempt highly-compensated executive if the employee customarily and regularly directs the work of two or more other employees, even though the employee does not meet all of the other requirements in the standard test for exemption as an executive.

Total Annual Compensation
The required total annual compensation of $100,000 or more may consist of commissions, nondiscretionary bonuses and other nondiscretionary compensation earned during a 52-week period, but does not include credit for board or lodging, payments for medical or life insurance, or contributions to retirement plans or other fringe benefits.

Make-up Payments and Prorating
There are special rules for prorating the annual compensation if employees work only part of the year, and which allow payment of a single lump-sum, make-up amount to satisfy the required annual amount at the end of the year and similar make-up payments to employees who terminate before the year ends.

Customarily and Regularly
"Customarily and regularly" means greater than occasional but may be less than constant, and includes work normally and recurrently performed every workweek but does not include isolated or one-time tasks.

BLUE COLLAR WORKERS

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.

POLICE, FIRE FIGHTERS, PARAMEDICS & OTHER FIRST RESPONDERS

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.

VETERANS

Veterans are not exempt administrative, executive or professional employees under Section 13(a)(1) based upon their status as veterans. Military training, for example, generally is not sufficient to meet the requirements for the professional exemption. Specifically, the learned professional exemption requires:

The employee's primary duty must be to perform work requiring advanced knowledge;
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.

No amount of military training will satisfy the requirements of the learned professional exemption because the exemption applies only to employees who are in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession. No amount of military training can turn a "blue collar" occupation or a technical field into a profession. For example, a veteran who has received substantial military training as a veteran but works on a manufacturing production line or as an engineering technician is not exempt under Section 13(a)(1) from the minimum wage and overtime requirements of the FLSA.

INSURANCE CLAIMS ADJUSTERS

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.

Whether they work for an insurance company or other type of company, insurance claims adjusters generally meet the duties requirements for the administrative exemption and are not entitled to overtime pay if their duties include activities such as interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual information to prepare damage estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation.

The status of an insurance claims adjuster, however, does not rely on the "claims adjuster" job title alone. There must be a case-by-case assessment to determine whether the employee's duties meet the requirements for exemption.

FINANCIAL SERVICES INDUSTRY EMPLOYEES

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.

Employees in the financial services industry generally meet the duties requirements for the administrative exemption and are not entitled to overtime pay if their duties include work such as collecting and analyzing information regarding the customer's income, assets, investments or debts; determining which financial products best meet the customer's needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer's financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption. In applying the exemption, it does not matter whether the employee's activities are aimed at an end user or an intermediary. The status of financial services employees is based on the duties they perform, not on the identity of the customer they serve.

NURSES

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.

Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.

Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.

TECHNOLOGISTS AND TECHNICIANS

Technologists and technicians, such as engineering technicians, ultrasound technologists, licensed veterinary technicians, avionics technicians and other similar employees are not exempt under Section 13(a)(1) from the minimum wage and overtime requirements of the FLSA because they generally do not meet the requirements for the learned 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.

Technologists and technicians do not meet these requirements for the learned professional exemption because they do not work in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession.

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.

WHERE TO OBTAIN ADDITIONAL INFORMATION

For more information regarding the FLSA, visit the Wage and Hour Division's Web site at http://www.wagehour.dol.gov or call our toll-free help line, available from 8 a.m. to 5 p.m. in your time zone, at 1-866-4US-WAGE (1-866-487-9243).

Copies of Wage and Hour publications also may be obtained from any office of the Wage and Hour Division. To locate the nearest Wage and Hour Division office, telephone the toll-free help line or visit our Web site for a complete listing of offices.

When the state laws differ from the federal FLSA, an employer must comply with the standard most protective to employees. Links to your state labor department can be found at http://www.dol.gov/esa/contacts/state_of.htm.

WHAT EMPLOYERS SHOULD DO

Here are a few things employers should do in reaction to the new rules:

Review salary levels and identify any current exempt employees who fall below minimum.
Examine the job duties of exempt employees who meet the salary level test, measuring those duties by the new requirements for one or more of the white collar exemptions.
Review any non-exempt employees whose annual earnings exceed $100,000 to determine whether they would qualify under the Highly Compensated Employee Test.
Review payroll practices to ensure no improper deductions are taken from exempt employees' salaries.
Develop, implement and publicize a Safe-Harbor Policy. The policy should state the employees' salaries are intended to cover all hours worked, the employer intends to pay the employees on a salary basis and will not make deductions from salary that are prohibited under the FLSA, and include a mechanism for employees to report improper deductions. You may view a sample Safe Harbor Policy from the "Sample Forms & Handbook Policies" section of HR Care®.
Institute and publicize a reporting mechanism employees can use to report payroll errors including salary deductions and incorrect paychecks.
Train personnel responsible for processing payroll regarding deduction policy and limitations on permissible deductions.
Make sure that manual laborers or other Blue Collar employees are not treated as exempt employees.

SOURCES

Title 29 CFR Part 541, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule, April 23, 2004. Effective on August 23, 2004.",

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	Gas Stations to Pay $45,957 to Resolve FLSA Case
	Hotel to Pay $15,917 in Wage Case
	Restaurants to Pay $831,232 in Minimum Wage, Overtime and Recordkeeping Case
	Contractor Pays $249,278 in Overtime and Recordkeeping Case
	Delivery Service to Pay $3.2 Million in FLSA Case
	$120,869 to Settle FLSA Case
	Restaurant to Pay $219,716 to Resolve Wage Case
	Assisted Living Facilities Will Pay $113,701 in FLSA Case
	$244,208 Recovered in Overtime and Recordkeeping Case
	Supermarket Pays $350,884 in FLSA Case
	Tree Service Company Pays $86,608 in Overtime and Recordkeeping Case
	Convenience Store Ordered to Pay $62,794 in FLSA Case
	Casino Operator to Pay $175,128 in FLSA Case
	Restaurant to Pay $192,622 to Employees in FLSA Case
	$103,300 to Employees in FLSA Case
	DOL Education Initiative to Help Restaurants in Wisconsin
	Restaurant to Pay $54,638 in Wage and Hour Case
	$63,568 to Settle Overtime and Recordkeeping Case
	DOL Announces Record $304 Million in Recovered Wages for Fiscal Year 2018
	Manufacturer to Pay $338,151 in Overtime and Damages
	Restaurant to Pay $190,000 in Minimum Wage and Overtime Case
	Security Services Company to Pay $79,000 to Resolve Wage Case
	Restaurant to Pay $240,000 in Back Wages, Damages and Penalties in FLSA Case
	Care Facility to Pay$385,000 in Back Wages, Damages and Penalties
	$429,005 Recovered in Overtime Case
	Police Department Pays $56,681 in Overtime and Recordkeeping Case
	Car Repair Center to Pay $67,462 in FLSA Case
	Staffing Company to Pay $355,478 to Resolve Wage Violations
	Construction Company to Pay $111,197 in Overtime and Recordkeeping Case
	Restaurant to Pay $88,282 in Back Wages in FLSA Case
	DOL Issues New Opinion Letters
	Restaurants Pay $208,642 to 69 Employees in Wage and Hour Case
	Hotels Pay $59,142 in Back Wages and Damages in FLSA Case
	Restaurant Pays $208,642 in FLSA Case
	Construction Company to Pay $98,236 in FLSA Case
	Direct Mail Company Pays $743,443 in FLSA Case
	Auto Body Shop to Pay $400,000 in FLSA Case
	Restaurant to Pay $313,742 to Resolve Wage Claims
	$394,438 in Back Wages and Damages in FLSA Suit
	Retailer to Pay $540,870 in Overtime and Damages
	Consent Judgment for $185,456 in FLSA Case
	Miami Schools to Pay $635,269 to Resolve FLSA Case
	Biodiesel Fuels Company Resolves FLSA Case for $143,336
	Car Wash to Pay $4.2 Million to Resolve FLSA Suit
	Restaurant to Pay $654,366 to Settle FLSA Case
	Restaurant to Pay $511,117 in Back Wages and Damages in FLSA Case
	Logging Company to Pay $878,874 in Overtime and Recordkeeping Case
	Hospital Pays $119,175 in Overtime Back Wages in FLSA Case
	Gas Station Pays $132,735 in FLSA Case
	Restaurants to Pay $363,284 in FLSA Case
	Residential Home-Care Owners to Pay $213,461 in FLSA Case
	Contractor to Pay $310,000 in FLSA Case
	Restaurant to Pay $203,884 in Back Wages in FLSA Case
	Janitorial Company to Pay $384,869 in Back Wages and Penalties
	Restaurant to Pay $335,687 in FLSA Case
	Fabricator to Pay $144,199 to Resolve Overtime and Recordkeeping Issues
	Contractor to Pay $110,641 in Back Wages, Damages and Penalties in FLSA Case
	Drywall Company to Pay $650,000 in Back Wages, Damages and Penalties for Overtime and Recordkeeping Violations
	Auto Dealership Pays $58,739 in Back Wages in FLSA Case
	Discount Retailer to Pay $273,254 to 125 Employees in FLSA Case
	New Opinion Letters by DOL on Compensability of Frequent Rest Breaks Due to Serious Health Condition
	Staffing Company to Pay $708,922 for Overtime, Minimum Wage and Recordkeeping Violations
	$137,237 in Overtime Wages to 17 Employees
	$342,926 in Back Wages for Overtime Violations
	New Jersey Gas Station Owners to Pay $2,088,572 in FLSA Case
	$750,006 Settlement for Restaurant Workers in FLSA Case
	Painting Company Resolves FLSA Case for $242,618
	U.S. Supreme Court Broadens Scope of FLSA Exemptions
	$306,000 FLSA Settlement for Auto Repair Employees
	$493,987 in Back Wages and Damages in FLSA Case
	Concrete Company to Pay $412,000 in Back Wages in FLSA Case
	Restaurants to Pay $833,992 in Back Wages to 64 Employees
	$214,392 to 145 Employees in Overtime Case
	West Virginia Employer to Pay $119,040 to Resolve FLSA Case Concerning Disabled Workers
	Tennessee Contractor to Pay $188,244 in Back Wages in FLSA Case
	Security Contractor to Pay $1,184,722 in Back Wages and Benefits
	Transportation Company to Pay $154,404 in FLSA Case
	Meatpacking Company to Pay $127,830 in FLSA Overtime Case
	New PAID Program Announced by DOL to Help Resolve Potential FLSA Issues
	Restaurant Franchisee Pays $258,249 to Settle Child Labor Case
	Restaurant to Pay #112,212 in Back Wages to Settle FLSA Case
	Fruit and Vegetable Markets to Pay $135,657 to Settle FLSA Case
	Florida Landscaper to Pay $79,758 in Overtime and Recordkeeping Case
	$181,663 in Back Wages for Elder Care Workers in Florida
	Communications Company to Pay $126,264 to Settle FLSA Case
	Restaurant Owner to Pay $97,080 in Back Wages Plus Liquidated Damages in FLSA Case
	$194,275 Settlement in FLSA Case
	Settlement by Bakery for $94,167 for Back Wages and Penalties
	Residential Care Facilities Settle FLSA Case for $173,539
	Restaurants to Pay $259,909 in FLSA Case; Training Required
	Concrete Company to Pay $179,314 in Overtime and Recordkeeping Case
	Pallet Company to Pay $289,215 for Overtime Violations
	Restaurant to Pay $247,922 in FLSA Case
	California Drywall Company Pays $944,000 in Back Wages and Damages for Overtime Violations
	Denver Landscaper Pays $550,167 in Back Wages and Penalties
	Property Management Company to Pay $255,793 in Back Wages
	Nursing Home to Pay $123,680 in FLSA Case
	Manufacturer to Pay $377,144 to Settle Overtime, Recordkeeping and Child Labor Issues
	DOL Reissues Opinion Letters from Bush Administration
	DOL Makes Review of Internship Programs More Employer Friendly
	Security Company to Pay $277,306 in Back Wages
	Owner of Gas Stations Pays $1,471,024 in Back Wages and Damages in FLSA Case
	Chicago Restaurant to Pay $339,418 in Back Wages and Damages
	$88,712 to Settle FLSA Cases
	Tennessee Restaurant Ordered to Pay $751,682 in Back Wages and Liquidated Damages
	Furniture Installer to Pay $194,069 in Back Wages
	Philadelphia Restaurants to Pay Nearly $830,000 to Resolve Federal Wage Violations
	Restaurant Pays $118,000 to Settle FLSA Claims
	Packaging Company Pays $425,000 to Settle FLSA Claims
	Foundry and Machinist Shop Pays $335,680 to Settle Wage and Hour Case
	Construction Company Pays $140,000 in Back Wages and Liquidated Damages After DOL Finds FLSA Violations
	$3 Million Settlement by Restaurant in Wage and Hour Case
	Restaurant Settles Wage and Hour Case for $282,264
	Restaurant Settles Wage and Hour Case for $150,000; Training Required
	Back Wages, Liquidated Damages and Penalties to 60 Employees in Wage and Hour Case
	Food Distribution Company Agrees to Pay $136,266 in Back Wages and Damages in Overtime and Child Labor Case
	$401,384 in Back Wages and Damages in Health Care Worker Overtime Case
	$1,480, 268 in Back Wages in Overtime Case
	Restaurant Owner Pleads Guilty to Impeding Wage Investigation
	$197,917 Plus Liquidated Damages Settlement in FLSA Case
	$2 Million Settlement in Minimum Wage Case
	$285,000 in Back Wages and Liquidated Damages to 82 Employees for Overtime Violations
	New Research and App to Combat Child Labor and Modern Slavery
	Health Care Company Settles Overtime Violations
	Staffing Company Ordered to Pay $165,000 in Back Wages and Liquidated Damages
	Back Wages, Liquidated Damages and Civil Penalties Settlement in Overtime Case
	$90,000 Settlement in FLSA Case
	$165,379 Settlement in Overtime Case
	Appeal Dropped on Obama Overtime Rule
	Overtime Rule Struck Down by Texas Federal Court
	DOL Releases RFI on FLSA Overtime Rules
	New Jersey Gas Stations Settle FLSA Case for $463,453
	$584,000 Settlement in FLSA Case
	$850,000 Settlement in FLSA Overtime and Recordkeeping Case
	$100,000 Settlement in Wage and Hour Case
	$717,202 Settlement in FLSA Case
	$149,000 Settlement in Overtime and Minimum Wage Case
	$296,836 Settlement in FLSA Overtime and Recordkeeping Case
	$3.4 Million Settlement in FLSA Overtime Case
	$660,117 Settlement in FLSA Overtime Case
	$726,989 Settlement in FLSA Overtime Case
	$1.95 Million to Settle Retaliation Claims; Training Ordered
	Another Delay in DOL Overtime Rule Case
	DOL and Philadelphia Printer Enter Into Consent Judgement to Resolve FLSA Complaints After Employees Hired by Temp Agency
	Ohio Restaurant Ordered to Pay Back Wages, Damages to "Volunteers"
	$2 Million Judgment in FLSA Case Affirmed by Tenth Circuit
	$54 Million Verdict in Lawsuit Against Wal-Mart
	$976,765 in Back Wages and Liquidated Damages to be Paid by Life Time Fitness for Minimum Wage Violations
	Texas Court Enjoins Final Overtime Regulations from Going Into Effect on December 1
	21 States Sue Department of Labor Over New Overtime Rule
	$1,072,061 in Back Pay for Overtime Violations by Commercial Transportation Company
	DOL Settles Overtime Claims with its Own Employees
	$439,030 in Back Wages and Damages to be Paid by WadeCo Specialties for Violating Overtime and Time Keeping Requirements
	Department of Labor Announces Final Rule Updating Overtime Regulations
	$227,048 in Back Wages and Interest to Employees of Restaurant for Minimum Wage and Overtime Violations
	Halliburton to Pay $18,293,557 for Violations of Overtime Pay and Record Keeping
	DOL Updating Rule to Extend Overtime Pay to More Salaried Workers
	$232,317 Settlement in Wage and Hour Violation by Limousine and Shuttle Bus Company
	FLSA Actions on the Rise
	California Supreme Court Rules Security Guards Must Be Paid for On-Call and Sleep Time
	$5.85 Million Settlement in Wage and Hour Case Concerning Interns
	First Federal Contractors -- Now Almost Half of States Raise the Minimum Wage in 2015
	Federal Court Strikes Down New DOL Rules Extending Overtime and Minimum Wage to Home Care Workers
	$4.5 Milllion Recovered for More than 5,300 Pennsylvania and West Virginia Oil and Gas Workers for Unpaid Overtime
	$637,048 in Back Wages and Penalties for Minimum Wage, Overtime, and Classification Violations
	$4,498,547 in Back Wages for Wage and Hour Violations in the Natural Gas Extraction Industry
	$185,270 in Back Wages and Damages for Overtime and Record-Keeping Violations
	LinkedIn Paid Back Overtime Wages and Damages for FLSA Violations
	President Signs Executive Order Directed at Federal Contractors and Their Employees
	Limousine Company to Pay $500,000 in Back Wages and Damages for Overtime Pay Violations
	Housing Authority to Pay $425,000 in Overtime Back Wages for Violating Wage and Hour Provisions
	$1,808,245 in Back Wages and Penalties for Violations of Wage and Record-Keeping Laws
	Farm to Pay $460,000 in Back Wages and Penalties for Violation of the FLSA and MSPA
	$277,565 in Back Wages for Overtime and Record-Keeping Violations by Janitorial Service Subcontractor
	President Barack Obama Issues Memorandum Directing Secretary of Labor Perez to Modernize the Overtime Rules
	$127,301 in Back Wages for Incorrectly Classifying Employees as Exempt From Overtime Pay
	$108,796 in Back Wages and Liquidated Damages to be Paid by Aspen Skiing Co. for FLSA Violations
	What to Remember When Setting Up Internship Programs
	$107,476 in Back Wages to be Paid by Glass Company for Overtime and Record Keeping Violations
	$65,705 in Back Wages for FLSA Violations of Minimum Wage, Overtime, Record-Keeping, and Classification of Exempt Employees
	$1,0875,752 in Back Wages, Interest and Liquidated Damages Paid to Employees of Restaurants in New York for Minimum Wage, Overtime, and Record-Keeping Violations
	$122,335 in Back Wages and Penalties Paid by Printing Company for Overtime, Misclassification and Time Keeping Violations
	$187,165 in Back Wages in Misclassification of Employees by Groundwater Sampling Company
	$204,329 in Back Wages for FLSA Violations
	$125,763 in Back Wages Paid by Restaurant for Overtime, Minimum Wage and Record-Keeping Violations
	Grocery Stores Paid $226,081 in Back Wages for Minimum Wage, Overtime, and Record Keeping Violations
	Supreme Court Rules that Pharmaceutical Sales Representatives are Exempt From FLSA's Overtime Pay and Minimum Wage Provisions
	$68,990 in Back Wages for Overtime Violations by Mental Health Services Company
	$376,380 in Back Wages and Liquidated Damages for Overtime Violations by Truck Testing Service
	$5,292,257 in Back Wages and Penalties to be Paid by Wal-Mart Stores for Misclassification of Employees as Exempt from Minimum Wage and Overtime Provisions
	Supreme Court Rules An Oral Complaint About Time-Keeping Practices is Protected Activity and Supports Retaliation Claim
	$1,011,413 to be Paid by Levi Strauss in Overtime and Back Wages
	$792,000 in Back Wages Recovered from New York Contractor
	Another Large FLSA Settlement: $754,578
	$219,000 in Back Wages and Damages for Employees Who Were Treated as Independent Contractors
	Failure to Pay Wages May Lead to Debarment of Federal Contractor
	$277,000 in Fines Against Movie Theaters for Child Labor Violations
	$780,000 in Back Wages and Penalties in FLSA Case from Long Island Pizzeria
	$934,000 Recovered in Unpaid Back Wages from Connecticut Employer
	$420,000 in Back Wages from Super China Buffet
	$1 Million in Overtime Wages for Employees of Army Contractor
	DOL Recovers Over $1 Million in Overtime Wages from Army Contractor
	$1.3 Million in Back Wages from TSA Contractor
	$1.5 Million Consent Judgment Against Cemex in Overtime Back Wages
	$339,000 in Back Wages from New York Electrical Contractor
	Wage and Hour Division Assesses Georgia Agricultural Employer $1.3 Million in Back Wages and $136,500 in Penalties
	$485,000 in Damages in Failure to Pay Overtime and Minimum Wage Case
	DOL Recovers More than $433,000 in Back Wages for Walt Disney World Employees
	DOL Obtains Nearly $1 Million in Back Wages and Interest for 135 H-1B Workers of Smartsoft International
	DOL Debars Asian Journal Publications from H-1B Visa Program; Employer Agrees to Pay $473,218 in Back Wages and $40,000 Penalty
	Updated Version of the Child Labor Rules Advisor ersion of the Child Labor Rules Advisor
	$1.3 Million in Back Wages for 187 Employees of GeoPharma in Largo, Fl in FLSA Case
	$4.2 Million in Back Wages for 603 Oregon Workers
	Tyson Foods agrees to nationwide injunction requiring poultry workers be paid for time spent putting on and taking off protective items, sanitization and between tasks; employees also to receive $500,000 in overtime back wages
	Salt Lake City-based Teleperformance USA Pays Almost $2 Million in Back Overtime Wages
	$4 Million in Back Wages for Gas Station Employees in New Jersey
	New Policy on Wage and Hour Administrator Interpretations Instead of Opinion Letters
	Patient Protection and Affordable Care Act Requires Employers to Provide Breaks for Breastfeeding
	DOL Seeks Nearly $1.9 Million in Back Wages and Penalties from Newark, NJ, Computer Consulting Company
	DOL Seeks $1.9 Million in Back Wages from Computer Consulting Firm and Debarment
	$1 Million in Overtime for 154 Hurricane Katrina Workers
	Over $1 Million in Overtime Back Wages for 798 Workers at Pilgrim's Pride
	DOL to Recover $1.8 Million in Back Wages for 500 Employees of Trucking Company and Debars Them for Three Years from Government Contracts
	Restaurant Operators Ordered to Pay More than $2 Million in Back Wages and Damages in FLSA Case
	$1.4 Million in Back Wages for 237 Contract Employees of USCIS Vermont Service Center
	Child and Migrant Labor Violations in North Carolina
	QuikTrip Agrees to Pay Nearly $750,000 in Back Pay to 3,819 Workers in 9 States
	$2.7 Million in Overtime Back Wages to 700 Employees
	Federal Minimum Wage Increases to $7.25 on July 24
	Southland Cleaning Service Ordered to Pay $3.5 Million in Back Wages
	DOL Recovers Over $1.6 Million in Overtime for Employees from IFCO Systems
	Overtime Suit Under FLSA by Undocumented Workers in Miami
	$2 Million Settlement in Overtime Case
	DOL Takes Legal Action Against Houston-Based CEMEX to Secure More than $5 Million in Overtime Wages
	Second Circuit Rules Company Policy Restricting Overtime Did Not Overrule Compensation Obligations Under FLSA
	Staples Agrees to Pay $38 Million to Settle Asst. Manager Overtime Class Action
	Suit Against Houston-based Grocery Chain to Recover More than $2 Million Dollars in Overtime Back Wages -- $260,000 in Civil Penalties Assessed
	Supreme Court Rules Home Health Aides Not Eligible for Overtime
	New Overtime Calculator Tool Helps Employers Calculate Overtime Pay
	Gas Station/Convenience Store Chain Agrees to Pay $1 Million to Settle Minimum Wage/Overtime Lawsuit
	Houston Tree Service Pays $1.8 million in Overtime Back Pay to 2,501 Employees following Department of Labor Investigation
	Wal-Mart Workers to Receive More Than $33 Million in Back Wages for Overtime Pay
	DOL Issues Opinion Letter on Certain "Registered Representatives" in the Securities Industry Concerning Administrative Exemption from Overtime
	U.S. Labor Department Sues Rife Industrial Marine to Recover Nearly $2 Million in Overtime Back Wages
	IBM Settles Overtime Claims for $65 Million
	Smith Barney Agrees to Pay $98 Million to Settle Overtime Pay Claims
	U. S. Labor Department Recovers Over $48,000 in Back Overtime Wages for 33 Workers Overseeing Hurricane Katrina Debris Clean-up
	Careerbuilder.com Pays Over $500,000 to Resolve Alleged Overtime Violations of Federal Wage Law
	Caribou Coffee Company, Inc. Sued By Former Managers For Wage and Overtime Violations in Nationwide Class Action
	U.S. Department of Labor Recovers More Than $830,000 in Overtime Back Wages for 100 Employees in Hicksville, N.Y.
	Tenth Circuit Rules Full-Time Wal-Mart Pharmacists Did Not Prove They Deserved Overtime
	New Overtime Security Rule Strengthens and Protects Workers'; Rights and Wages
	Second Circuit Rules Overtime Exemption Does Not Apply To Home Healthcare Workers
	Service Advisor for Dealership Exempt from FLSA Overtime Rules
	Employer Can Compel Arbitration of Wage Claims Even Though Agreement Is Inconsistent with FLSA

Exemptions From Minimum Wage and Overtime

Circumstances in Which the Employer May Make Deductions from Pay

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