8-F | WHAT ARE THE EXEMPTIONS UNDER THE FLSA?

The burden clearly is upon the employer affirmatively to show that the plaintiff-employee is within the scope of any exemption. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190 (1966); Corning Glass Works v. Brennan, 417 U.S. 188 (1974).

1) “White collar exemptions”

a) Executive or Managerial Exemption Qualification/Employee:

(1) Earns at least $455 a week /($23,660/year)

(2) Has a primary duty of managing the enterprise or a recognized department or subdivision/determination of the employee’s primary duty “’must be based on all the facts in a particular case’ ... [T]he amount of time spent on managerial duties is a relevant, but not a dispositive factor.” Murray et al., v. Stuckey’s, 939 F.2d 614, 618 (8th Cir. 1995).

(3) Regularly and customarily directs work with two or more employees/ the equivalent of two full time employees is any combination of part-time and/or full-time employees whose total number of work hours meets or exceeds 80 per week Murray, 50 F.3d 564, 567-69 (8th Cir. 1995); Krieg v. Pell’s Inc., 2002 WL 449797 (S.D. Ind. 2002).

(4) Has authority to hire and hire other employees or their recommendations as to hiring, firing, promotion or other changes of status are given particular weight

b) Administrative Exemption/Employee:

(1) Earns at least $455 per week/($23,660/year)

(2) Has a primary duty of performing office or nonmanual work related to the management or general business operations¹⁹ of the employer or the employer’s customers

(3) Holds a position of responsibility²⁰ with the employer

c) Professional Exemption:

(1) Earns at least $455 a week /($23,660/year)

(2) A primary duty of performing office or nonmanual work requiring advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction

(3) Such advanced knowledge or learning may be acquired by an equivalent combination of intellectual instruction and work experience

d) Computer Employee:

(1) Earns at least $455 a week or if paid on an hourly basis are he/she earns at least a regular rate of $27.63 per hour

(2) Must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field

(3) Subject to detailed definition of what constitutes computer work

e) Outside Sales:

(1) Have a primary duty to make sales, obtain orders or contracts for services, or use of the facilities

(2) Must customarily and regularly engage away from employer’s place of business while performing such duties

f) Highly Compensated Employees/executive, administrative or professional earning over $100,000

(1) In order to qualify for this exemption, the employee’s total annual compensation cannot be based entirely on commissions and bonus payments, and must include at least $455/week paid on a salary or fee basis); and

(2) Must perform office or non-manual work

(3) Must “customarily and regularly” perform one or more of the responsibilities of an executive, administrative or professional employee

(4) Additional highly detailed requirements

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Footnotes

¹⁹ “Management or general business operations” includes tax, finance, accounting auditing, quality control, purchasing, procurement, advertising, marketing, research, safety and health, personnel management, human resources, employee benefits, labor relations, public relations, government relations and similar activities.
²⁰ “Position of responsibility” is defined as either work of substantial importance or work requiring a high level of skill or training.

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