Who is Entitled to Overtime?
Under the FLSA, there are two different categories of
employees. There are exempt employees who, based on their job
duties, would not be entitled to overtime. They are exempt from
overtime pay.
Non-exempt employees are those whose job duties do
fall within the guidelines provided under exemptions and are
therefore, entitled to receive overtime pay.
The Department of Labor guidelines for exempt and
non-exempt employees are:
Professional Exemption
In order for an employee to exercise the exemption
status for a learned professional employee 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.
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:
-
The
application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software
or system functional specifications;
-
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;
-
The
design, documentation, testing, creation or modification of
computer programs related to machine operating systems; or
-
A
combination of the aforementioned duties, the performance of
which requires the same level of skills.
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.
Fair
Labor Standards Act FAQ
