1	The New Overtime Regulations: Summary of the Executive, Administrative and Professional Exemptions Business 21 Publishing
2	Fair Labor Standards Act Federal Minimum Wage: $5.15/hour Overtime: 1 ½ times the regular rate of pay for all hours over 40 hours in a work week
3	“White Collar” Exemptions Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees who are employed in a bona fide: Executive; Administrative; Professional; or Outside Sales capacity. Certain computer employees may be exempt professionals under Section 13(a)(1) or exempt under Section 13(a)(17) of the FLSA.
4	Three Tests for Exemption Salary Level Salary Basis Job Duties
5	Salary Level
6	Minimum Salary Level: $455 For most employees, the minimum salary level required for exemption is $455 per week Must be paid “free and clear” The $455 per week may be paid in equivalent amounts for periods longer than one week: Biweekly: $910 Semimonthly: $985.83 Monthly: $1,971.66
7	Highly Compensated Test Total annual compensation of at least $100,000 At least $455 per week paid on a salary or fee basis Perform office or non-manual work Customarily and regularly perform any one or more of the exempt duties identified in the standard tests for the executive, administrative or professional exemptions
8	Total Annual Compensation Total annual compensation includes: Commissions Nondiscretionary bonuses Other nondiscretionary compensation earned during a 52-week period Total annual compensation does not include: Credit for board, lodging or other facilities Payments for medical or life insurance Contributions to retirement plans or fringe benefits
9	Make-Up Payment & Pro-Rating If an employee’s total annual compensation does not equal $100,000 by the end of the year: The employer may, within one month after the end of the year, make one final payment to reach the $100,000 level; or The employee will be tested for exemption under the standard duties tests The $100,000 may be pro-rated for employees who do not work the full year The employer may use any 52-week period at the year
10	Office or Non-manual Work The highly compensated test is not available for Non-management production line workers Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers Other employees who perform work involving repetitive operations with their hands, physical skill and energy
11	Customarily and Regularly A frequency that must be greater than occasional but which, of course, may be less than constant Includes work normally and recurrently performed every workweek Does not include isolated or one-time tasks
12	Salary Basis
13	Salary Basis Test Regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis) The compensation cannot be reduced because of variations in the quality or quantity of the work performed Must be paid the full salary for any week in which the employee performs any work Need not be paid for any workweek when no work is performed
14	Deductions From Salary An employee is not paid on a salary basis if deductions from the predetermined salary are made for absences occasioned by the employer or by the operating requirements of the businesses If the employee is ready, willing and able to work, deductions may not be made for time when work in not available
15	Permitted Salary Deductions Seven exceptions from the “no pay-docking” rule: Absence from work for one or more full days for personal reasons, other than sickness or disability Absence from work for one or more full days due to sickness or disability if deductions made under a bona fide plan, policy or practice of providing wage replacement benefits for these types of absences To offset any amounts received as payment for jury fees, witness fees, or military pay
16	Permitted Salary Deductions Seven exceptions from the “no pay-docking” rule: Penalties imposed in good faith for violating safety rules of “major significance” Unpaid disciplinary suspension of one or more full days imposed in good faith for violations of workplace conduct rules Proportionate part of an employee’s full salary may be paid for time actually worked in the first and last weeks of employment Unpaid leave taken pursuant to the Family and Medical Leave Act
17	Improper Deductions - Examples Deduction for a partial-day absence to attend a parent-teacher conference Deduction of a day of pay because the employer was closed due to inclement weather Deduction of three days of pay because the employee was absent from work for jury duty, rather than merely offsetting any amount received as payment for the jury duty Deduction for a two day absence due to a minor illness when the employer does not provide wage replacement benefits for such absences
18	Effect of Improper Deductions An actual practice of making improper deductions from salary will result in the loss of the exemption: During the time period in which improper deductions were made For employees in the same job classifications Working for the same managers responsible for the actual improper deductions Isolated or inadvertent improper deductions, however, will not result in the loss of exempt status if the employer reimburses the employee
19	Actual Practice Factors include, but are not limited to: The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline The time period during which the employer made improper deductions The number and geographic location of both the employees whose salaries were improperly reduced and the managers responsible Whether the employer has a clearly communicated policy permitting or prohibiting improper deductions
20	Example: Effect of Improper Deductions If Manager A has docked the pay of Engineer A on each of 12 days when Engineer A arrived late for work during the last 3 months, then the exemption could be lost for Engineer A and Engineer B during that 3 months, but could not be lost for the Chemist or Engineers C and D
21	Safe Harbor The exemption will not be lost if the employer: Has a clearly communicated policy prohibiting improper deductions and including a complaint mechanism; Reimburses employees for any improper deductions; and Makes a good faith commitment to comply in the future Unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints
22	Clearly Communicated Policy The best evidence of a clearly communicated policy is a written policy distributed to employees prior to the improper pay deductions by, for example: Providing a copy to the policy to employees at the time of hire Publishing the policy in an employee handbook Publishing the policy on the employer’s Intranet
23	Payroll Practices That Do Not Violate the Salary Basis Test Taking deductions from exempt employees accrued leave accounts Requiring exempt employees to keep track of and record their hours worked Requiring exempt employees to work a specified schedule Implementing bona fide, across-the-board schedule changes
24	Additional Compensation An employer may provide compensation in addition to the $455 minimum guaranteed weekly salary, such as: Commissions Bonuses Additional pay based on hours worked beyond the normal workweek
25	Hourly, Daily or Shift Basis The regulations also allow an employee’s earnings to be computed on an hourly, daily or shift basis, if the employer: Guarantees at least $455 per week paid on a salary basis, regardless of the number of hours, days of shifts worked; and A reasonable relationship exists between the guaranteed amount and the amount actually earned
26	Reasonable Relationship “Reasonable relationship” means the weekly guarantee is roughly equivalent to the employee’s usual earnings at the assigned hourly, daily or shift rate for the employee’s normal scheduled workweek For example, an exempt employee guaranteed at least $500 per week and who normally works four or five shifts each week, may be paid $150 per shift without violating the salary basis requirement
27	Fee Basis Administrative and professional employees also may be paid on a “fee basis” An employee is paid on a “fee basis” if the employee is paid an agreed sum for completing a single job, regardless of the time required to complete the work Payment on a “fee basis” is not available for a series of non-unique jobs repeated an indefinite number of times for which payment on an identical basis is made over and over again
28	Fee Basis A fee payment meets the minimum salary level required for exemption if, based on the time worked to complete the job, the fee is at a rate that would amount to at least $455 per week if the employee worked 40 hours Example: An artist is paid $250 to paint a portrait that took 20 hours to complete, the equivalent of $12.50 per hour Because working 40 hours at this $12.50 per hour rate would yield the artist $500, the fee payment meets the salary requirements for exemption
29	No Salary Requirements The salary level and salary basis tests do not apply to: Outside Sales Employees Doctors Lawyers Teachers Certain computer-related occupations paid at least $27.63 per hour
30	Review Minimum Salary Level: $455 per week Highly Compensated Level: $100,000 per year Salary Basis: A predetermined amount paid for every week in which the employee performs any work, which is not subject to reduction because of variations in the quality or quantity of work performed The salary level and salary basis tests do not apply to outside sales employees, doctors, lawyers, teachers, and certain computer-related occupations paid at least $27.63 per hour
31	Executive Duties
32	Executive Duties Primary duty is management of the enterprise or of a customarily recognized department or subdivision; Customarily and regularly directs the work of two or more other employees; and Authority to hire or fire other employees or whose suggestions and recommendations as to hiring, firing, advancement, promotion or other change of status of other employees are given particular weight.
33	Primary Duty The principal, main, major or most important duty that the employee performs. Factors to consider include, but are not limited to: Relative importance of the exempt duties; Amount of time spent performing exempt work; Relative freedom from direct supervision; and Relationship between the employee’s salary and the wages paid to other employees for the same kind of nonexempt work.
34	Primary Duty Employees who spend more than 50% of their time performing exempt work will generally satisfy the primary duty requirement However, the regulations do not require that exempt employees spend more than 50% of time performing exempt work
35	Management Interviewing, selecting, and training employees Setting and adjusting pay and work hours Maintaining production or sales records Appraising employee productivity and efficiency Handling employee complaints and grievances Disciplining employees Planning and apportioning work among employees
36	Management Determining the techniques to be used; the type of materials, supplies, machinery, equipment or tools to be used; or the merchandise to be bought, stocked and sold Providing for the safety and security of employees or property Planning and controlling the budget Monitoring or implementing legal compliance measures
37	Department or Subdivision A “customarily recognized department or subdivision” must have a permanent status and continuing function Need not be physically within the employer’s establishment, and may move from place to place Continuity of the same subordinate personnel is not essential to the existence of a recognized unit. The employee in charge of each branch establishment is in charge of a recognized subdivision Does not include a mere collection of employees assigned from time to time to a specific job
38	Department or Subdivision Examples of customarily recognized departments or subdivisions include:
39	Customarily and Regularly A frequency that must be greater than occasional but which, of course, may be less than constant Includes work normally and recurrently performed every workweek Does not include isolated or one-time tasks
40	Two or More The phrase “two or more other employees” means two full-time employees or the equivalent Full-time generally means 40 hours per week The supervision of the same employees can be distributed among two or more exempt executives, but the hours worked by an employee cannot be credited more than once
41	Staffing Meets the “Two or More” Requirement
42	Staffing Does Not Meet the “Two or more” Requirement
43	Particular Weight Factors include, but are not limited to: Whether it is part of the employee’s job duties to make suggestions and recommendations The frequency with which suggestions and recommendations are made or requested The frequency with which the employee’s suggestions and recommendations are relied upon
44	Particular Weight Suggestions and recommendations may be reviewed by a higher level manager The exempt executive need not have authority to make the ultimate decision Making an occasional suggestion regarding a change in status of a co-worker does not meet the “particular weight” standard
45	Concurrent Duties Concurrent performance of exempt and nonexempt work does not automatically disqualify an employee from exemption Exempt executives generally decide when to perform nonexempt duties and remain responsible for the success or failure of business operations Nonexempt employees generally are directed by a supervisor to perform the exempt work or perform the exempt work for defined time periods
46	20% Owner Executives The executive exemption also includes employees who: own at least a bona fide 20-percent equity interest in the enterprise; and are actively engaged in management of the enterprise. The salary level and salary basis requirements do not apply to 20% equity owners.
47	Review Duties requirements for executive exemption: Primary duty of management; Customarily and regularly directs the work of two or more other employees; and Authority to hire or fire or having suggestions and recommendations as to hiring, firing, advancement promotion or any other change of status to other employees be given particular weight. The executive exemption also applies to 20% owners who are actively engaged in management.
48	Administrative Duties
49	Administrative Duties Whose primary duty is 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 Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
50	Management or General Business Operations Refers to the type of work performed by the employee Work must be directly related to assisting with the running or servicing of the business Does not include working on a manufacturing production line or selling a product in a retail or service establishment
51	Management or General Business Operations Tax Finance Accounting Budgeting Auditing Insurance Quality Control Purchasing Procurement Advertising Marketing Research Safety and Health Human Resources Employee Benefits Labor Relations Public and Government Relations Legal and Regulatory Compliance Computer Network, Internet and Database Administration
52	Employers Customers Employees acting as advisors or consultants to clients or customers
53	Discretion and Independent Judgment The comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed
54	Discretion and Independent Judgment Factors 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, even if the employee’s assignments are related to operation of a particular segment of the business
55	Discretion and Independent Judgment Factors include, but are not limited to: 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 Whether the employee has authority to negotiate and bind the company on significant matters Whether the employee provides consultation or expert advice to management
56	Discretion and Independent Judgment Factors include, but are not limited to: Whether the employee is involved in planning long- or short-term business objectives Whether the employee investigates and resolves matters of significance on behalf of management Whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances
57	Discretion and Independent Judgment Discretion and independent judgment does not include: Applying well-established techniques, procedures or specific standards described in manuals or other sources Clerical or secretarial work Recording or tabulating data Performing mechanical, repetitive, recurrent or routine work
58	Use of Manuals Exempt employees may use manuals, guidelines or other established procedures if they: contain or relate to highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills Employees are not exempt if they use manuals to apply well-established techniques or procedures within closely prescribed limits
59	Insurance Claims Adjusters Exempt status depends on actual job duties May be exempt if duties include: 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 Making recommendations regarding litigation
60	Financial Services May be exempt if duties include: 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 Marketing, servicing or promoting the employer’s financial products An employee whose primary duty is selling financial products does not qualify for the administrative exemption
61	Human Resources Human resource managers who formulate, interpret or implement employment policies generally meet the administrative duties requirements Personnel clerks who “screen” applicants to obtain data regarding minimum qualifications and fitness for employment generally are not exempt administrative employees
62	Other Exempt Positions An employee who leads a team of other employees assigned to complete major projects Executive assistant or administrative assistant to a business owner or senior executive of a large business who has been delegated authority regarding matters of significance Management consultants who study the operations of a business and propose changes in organization
63	Non-exempt Positions Ordinary inspection work involving well-established techniques and procedures Examiners and graders who perform work involving comparison of products with established standards Comparison shoppers who merely report the prices at a competitor’s store Public sector inspectors on investigators
64	Review Primary duty of 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 Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
65	Learned Professional Duties
66	Learned Professional The employee’s primary duty must be the performance of work requiring advanced knowledge In a field of science or learning Customarily acquired by a prolonged course of specialized intellectual instruction
67	Advanced Knowledge Predominately intellectual in character Includes work requiring the consistent exercise of discretion and judgment The advanced knowledge is generally used to analyze, interpret or make deductions from varying facts or circumstances Not work involving routine mental, manual, mechanical, or physical work Cannot be attained at the high school level
68	Field of Science or Learning Occupations with recognized professional status, as distinguished from the mechanical arts or skilled trades
69	Prolonged Course of Specialized Intellectual Instruction Specialized academic training is a prerequisite for entering the profession Best evidence that an employee meets this requirement is possession of the appropriate academic degree
70	Prolonged Course of Specialized Intellectual Instruction The learned professional exemption is not available for occupations that may be performed with: Only the general knowledge acquired by an academic degree in any field Knowledge acquired through an apprenticeship Training in the performance of routine mental, manual, mechanical or physical processes The exemption also does not apply to occupations in which most employees acquire skill by experience
71	Customarily Exemption is also available to employees in learned professions who: Have substantially the same knowledge level and Perform substantially the same work as the degreed professionals, But attained the advanced knowledge through a combination of work experience and intellectual instruction Examples: Lawyer who did not attend law school Chemist who does not have a chemistry degree
72	Doctors The learned professional exemption applies to any employee who holds a valid license or certificate permitting the practice of medicine Osteopathic physicians Podiatrists Dentists Optometrists The exemption is also available to an employee who holds the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program
73	Nurses Registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption Many registered nurses, however, are paid by the hour, not on a salary basis, and thus are entitled to overtime pay Licensed practical nurses generally do not qualify as exempt learned professionals
74	Other Medical Professions Registered or certified medical technologists 3 years of pre-professional study in an accredited college or university, plus 1 year of professional study in an accredited school of medical technology Dental hygienists 4 years of pre-professional and professional study in an accredited college or university Certified physician assistants 4 years of pre-professional and professional study, including graduation from an accredited physician assistant program
75	Other Exempt Professions Lawyers Teachers Accountants Pharmacists Engineers Actuaries Chefs Athletic trainers Licensed funeral directors or embalmers
76	Other Nonexempt Professions Accounting clerks and bookkeepers who normally perform a great deal of routine work Cooks who perform predominantly routine mental, manual, mechanical or physical work Paralegals and legal assistants Engineering technicians
77	Creative Professional Duties
78	Creative Professional Duties 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
79	Recognized Field of Artistic or Creative Endeavor Music Musicians, composers, conductors, soloists Writing Essayists, novelists, short-story writers, play writers Screen play writers who choose their own subjects Responsible writing positions in advertising agencies Acting Graphic Arts Painters, photographers, cartoonists
80	Invention, Imagination, Originality or Talent A creative professional must perform work requiring invention, imagination, originality or talent Creative professional work does not include: Work that primarily depends on intelligence, diligence and accuracy Work that can be produced by a person with general manual ability and training Exempt status is determined on a case-by-case basis, depending on the extent of the invention, imagination, originality or talent exercised
81	Journalists Employees of newspapers, magazines, television and other media are not exempt if they: Collect, organize and record information that is routine or public Do not contribute a unique interpretation or analysis Their work product is subject to substantial control Journalists may be exempt if they: Perform on-air in radio or television Conduct investigative interviews Analyze or interpret public events Write editorials, opinion columns or commentary
82	Review Learned Professional Primary duty of the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction Creative Professional Primary duty of the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor