Administrative employees exemptions FLSA?
Professional exemptions FLSA?
Artistic professional exemptions FLSA?
Computer professionals exemptions FLSA?
Executive exemptions FLSA?
Outside sales people exemptions FLSA?
Commissioned retail sales employees exemptions FLSA?
Truck drivers exemptions FLSA?
More exemptions from the FLSA
Employees protection from employers retaliation
Do I have an overtime or minimum wage claim?

Are administrative employees exempt from the FLSA?

The duty tests for each of these exemptions can be quite complicated. Each exemption sets forth a three-part test which is briefly outlined below. To qualify for the exemption, the employer must prove that the employee's primary job duties meet all aspects of the duty test.

The term primary job duty generally means activities that encompass fifty percent (50%) or more of an employee's work time. The primary job duty requirement means that an employer cannot deny an employee overtime pay on the basis of collateral assignments to the employee that may fit within one of the exemptions.

ADMINISTRATIVE DUTIES TEST

The administrative exemption is limited to employees who make decisions with regard to matters of significance concerning the internal operations of their employer. It is intended to apply to people in jobs such as personnel, labor relations, high level budget analysts, management analysts and other similar types of employees.

To be exempt from receiving overtime compensation as an administrative employee, an employee's primary job duty must involve (1) office or nonmanual work, or staff work, which is directly related to management; (2) the exercise of independent judgment and discretion with regard to matters of significance on a customary and regular basis; and (3) work regularly assisting and directing an executive or owner, or work along specialized technical lines under only general supervision that requires specialized knowledge, training or experience.

Note that the test for the exemption is a three-part test and that all three parts must be established for the employer to exempt employees from receiving overtime pay. Thus, an employee who performs internal functions such as a management analyst may not qualify for the exemption if the employee does not customarily and regularly exercise independent judgment and discretion with regard to matters of significance. For example, someone who simply reviews and summarizes data would likely not be found to be an administrative employee and would be entitled to FLSA overtime compensation.

In addition, the Department of Labor and the courts have applied a production worker/administrative worker distinction in which the workers who perform the day-to-day work necessary for an employer to fulfill its mission can not qualify as administrative employees. Set forth below are some examples of workers who were found by the courts or the Department of Labor to be entitled to overtime pay:

• Escrow workers working for a title company
• Indoor wholesale salespeople working for an electrical supplier
• State police detectives
• Probation officers and district attorney investigators
• Convention planners employed by a tourist bureau
• Electronics technicians troubleshooting repair of satellite equipment
• Insurance claims investigators
• Senior border patrol agents
• Computer specialists performing simple programming
• Television news producers for a local television station
• INS anti-smuggling criminal investigators

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Are professionals, in general, exempt from the FLSA?

The professional exemption is intended to apply to employees who work in recognized professions that typically require a four year college degree or higher such as doctors, lawyers, engineers, architects, scientists, teachers in a recognized school system, etc. Disputes involving the professional exemption typically arise when an employee has developed an area of expertise through on-the-job experience that the employer attempts to claim is a profession such as equipment technicians or journalists or when a person trained as a professional is not performing professional work such as an accountant who is doing bookkeeping.

There is a three-part duty test for the professional exemption. With two exemptions, an employee who is not salaried can not be exempted from receiving overtime compensation as a professional regardless of the employee's job duties. The exemptions are for teachers, and doctors and lawyers who hold valid licenses to teach, practice medicine or law To exclude an employee from receiving overtime pay as a professional, an employer must prove that an employee meets all three parts of the test.

The first step is that the employee's primary job duty must be to perform the work of a "profession." This means that the work that the employee is performing is the type of work that is typically performed by persons who have developed an area of expertise by obtaining a four year degree through college study or higher in a specialized field. To be considered a professional under the FLSA, the employee must have both practical and theoretical knowledge of the profession.

Second, the employee's work must consistently involve the exercise of independent judgment and discretion with regard to important decisions within the profession.

Third, the work must be intellectual and varied as opposed to routine, mechanical or physical work. It cannot be the type of work that can be easily standardized.

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Are artistic professionals exempt from the FLSA?

Persons employed in the arts are exempt from receiving overtime under the artistic professional exemption. This is most often misapplied to persons who work in fields that have limited avenues for creativity such as draftsman, graphic artists, journalists, technical writers, copy writers and the like.

To be excluded from receiving overtime as an artistic professional, an employee must perform work that is original and creative in nature in a field of recognized artistic endeavor. The results must be dependent primarily on the invention, imagination or talent of the employee.

The work must also require the consistent exercise of discretion and independent judgment, and it must be predominantly intellectual and varied.

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Are computer professionals exempt from the FLSA?

This exemption is limited to computer programmers and computer systems analysts. In contrast, employees who are engaged in the maintenance, operation or repair of computers and software are clearly entitled to receive overtime. Computer systems analysts, computer programmers, and software engineers in the computer software field are exempt from receiving FLSA overtime only if they meet certain tests Congress has established for the computer professional exemption.

The exemption only applies to highly skilled employees who have achieved a level of proficiency in the theoretical and practical application of a body of specialized knowledge in computer systems analysis, programming and software engineering. To be considered an FLSA exempt "computer professional," the employee must work free from close supervision. In addition, these types of employees are exempt only if their primary job duty involves programming, design, or modification of software, or the application of "systems analysis techniques and procedures, including consulting with users to determine hardware, software or system specifications."

In addition, in order for this exemption to apply, the computer professional must either be paid on a salaried basis, or if he or she is hourly paid, they must be paid at least $27.63 an hour. In other words, hourly paid computer employees who make less than $27.63 per hour cannot be excluded from receiving overtime under this exemption.

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Are executives exempt from the FLSA?

The executive exemption applies to managers and high level supervisors who are paid on a salaried basis. A two-part duty test is used to determine whether salaried employees can legally be denied overtime compensation on the basis that they are "executives." (There is a three-part test that is applied to employees who make less than $250 a week).

To prove that its employees meet the duty test, an employer must establish that the primary duty of the employee is managerial. As a general rule of thumb, this means that the employee spends fifty or more percent of his or her time performing managerial duties.

Second, the employer must establish that the employee customarily and regularly directs the work of two or more employees.

In a 1999 decision, a federal court ruled that employees with the title "supervisor" who did not supervise a permanently assigned group of employees were improperly classified as exempt executives. The supervisory employees were found to be more like group leaders or forepersons than managers because they supervised the activities of different employees each week or month.

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Are outside sales people exempt from the FLSA?

This exemption applies to employees who engage in making sales away from the employer's place of business. It does not apply to telemarketers or any other salespeople who make sales from their employer's place of business.

The outside sales exemption is limited to employees who customarily and regularly work away from the employer's business making sales or obtaining orders or contracts from clients, and who do not spend more than 20 percent of their worktime performing non-exempt work. In other words, 80 or more of the hours worked in a workweek must consist of outside sales work, otherwise the sales person is entitled to overtime under the FLSA.

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Are commissioned retail sales employees exempt from the FLSA?

Employees of retail or service establishments are exempt from receiving overtime if more than half of the employee's earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked.

In addition, for this exemption to apply, 75 percent of the employer's annual dollar volume of sales must be recognized as retail sales. This prevents the retail sales exemption from applying to wholesalers.

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Are truck drivers exempt from the FLSA?

Excluded from receiving overtime are drivers, driver's helpers, loaders and mechanics employed by a motor carrier (cars, trucks, etc.), if the employee's duties affect the safety of operation of vehicles in transportation of passengers or property in interstate commerce. This exclusion was enacted because these types of employees are subject to regulation by the Department of Transportation.

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What other categories of workers are exempt from the FLSA?

There are other exemptions that apply to employees in certain other occupations. For example, taxicab drivers, seaman, railway employees, airline employees, employees of some seasonal and recreational establishments, and some agricultural workers are exempt from the FLSA. Again, the general presumption is that employees are entitled to receive overtime compensation and the vast majority of workers, including workers in office jobs and service jobs, are entitled to FLSA overtime compensation.

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Are employees protected from retaliation by employer for filing claims under the FLSA?

The FLSA and many state laws contain provisions that protect workers who file cases to recover overtime from retaliation by their employers. The FLSA provides for backpay, frontpay — which is the estimated amount of money that the employee would have earned in the future had he or she not been retaliated against — injunctive relief ordering the employer to refrain from its conduct and monitoring the employer's behavior, double damages, interest, attorneys' fees and costs.

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What should I do if I believe that I have a claim for minimum or overtime wages under the FLSA?

The determination of the validity of minimum or overtime wage claims depend upon the analysis and application of a complex federal statute to a particular situation. It is, therefore, essential that any employee who may have questions about their right to receive minimum or overtime wages should contact an attorney with extensive experience in handling FLSA claims.

Over the past thirty years, our attorneys have successfully handled overtime wage cases obtaining thousands of dollars for thousands of employees. If you believe that you have a claim for minimum or overtime wages, please contact our office anytime by calling 800-437-2571 for a free, no obligation consultation with a qualified attorney from our office or use our Do I have a claim? submission form.

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