FairPay Fact Sheet by Exemption Under the Fair Labor Standards Act (FLSA)
Fact Sheet #17B: Exemption for Executive Employees Under the Fair Labor Standards Act (FLSA)
This fact sheet provides general information on the exemption from minimum wage and overtime pay provided by Section 13(a)(1) of the Fair Labor Standards Act as defined by Regulations, 29 CFR Part 541.
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 employees specific job duties and salary must meet all the requirements of the Departments regulations.
See other fact sheets in this series for more information on the exemptions for administrative, professional, computer, and outside sales employees, and for more information on the salary basis requirement.
To qualify for the executive employee exemption, all of the following tests must be met:
Primary duty means the principal, main, major or most important duty that the employee performs. Determination of an employees primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employees job as a whole.
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.
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.
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.
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.
Factors to be considered in determining whether an employees 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 employees job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. Generally, an executives recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include occasional suggestions. An employees recommendations may still be deemed to have particular weight even if a higher level managers recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employees change in status.
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.
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.
Where to Obtain Additional Information
The Department of Labor provides this information to enhance public access to information on its programs. This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
For more information regarding the FLSA, visit the Wage and Hour Divisions Web site at 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 www.dol.gov/esa/contacts/state_of.htm.