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Exempt or Non-Exempt: How to Determine Proper Exemption Status for your California Employees

Who is Exempt and Who is Non-Exempt? 

42368950_lThe FLSA provides an exemption from both minimum wage and overtime requirements for employees employed as “white collar” employees, namely, executive, administrative, professional, and outside sales employees, as well as certain employees in computer-related occupations.

To qualify for one of these exemptions, employees generally must meet certain tests regarding their job duties and be paid a certain minimum salary. Job titles alone do not determine exempt status, and neither does the receipt of a particular salary. In order for an exemption to apply, an employee’s specific job duties and earnings must meet all of the applicable requirements. It is important to note that simply paying an employee a salary does not relieve an employer of minimum wage and overtime obligations to that employee. Unless they meet the criteria of a specific exemption, employees covered by FLSA protections who are paid a salary are still due overtime if they work more than 40 hours in a week. To be clear, millions of salaried white collar employees do not qualify for any of the so-called “white collar” exemptions because their duties or earnings do not meet the requirements. These employees therefore remain entitled to both minimum wage and overtime pay.

Claiming Exemption – Three Basic Tests

For an employer to claim a white collar exemption for a particular employee, three tests generally need to be satisfied:

  1. Payment on a salary basis: the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed;
  1. Payment of a minimum salary level: the amount of salary paid must meet a specified minimum amount; and
  1. Duties test: the employee’s job duties must primarily involve those associated with exempt executive, administrative, professional, outside sales, or computer employees.

Basic Requirements for Exemption:

Exemption Salary Level Test Salary Basis Test Duties Test
Executive •  At least $913 / week

[$47,476 / year]

 •  At least 90% of the salary level [$822 / week] must be paid on a “salary” basis

•  Up to 10% [$91 / week] may be satisfied with nondiscretionary bonuses or incentive payments

 •  The employee’s “primary duty” must be that of

an exempt executive employee, as described in the “Duties Tests” section of this guide
Administrative •  At least $913 / week

[$47,476 / year]

•  “Academic administrative personnel” may qualify with a salary at least equal to the entry salary for teachers

at their educational establishment.

 •  At least 90% of the salary level [$822 / week] must be paid on a “salary” or “fee” basis

•  Up to 10% of the salary level [$91 / week] may be satisfied with nondiscretionary bonuses or incentive payments

 •  The employee’s “primary duty” must be that of an exempt administrative employee, as described in the “Duties Tests” section of this guide
Professional •  At least $913 / week

[$47,476 / year]

 

Salary level test does not apply to doctors, lawyers, or teachers

 •  At least 90% of the salary level [$822 / week] must be paid on a “salary” or “fee” basis

•  Up to 10% of the salary level [$91 / week] may be satisfied with nondiscretionary bonuses or incentive payments

These requirements do not apply for doctors, lawyers, and teachers

 •  The employee’s “primary duty” must be that of

an exempt professional employee, as described in the “Duties Tests” section of this guide
Outside Sales Does not apply Does not apply •  The employee’s “primary duty” must be that of an exempt outside sales employee, as described in the “Duties Tests” section of this guide

 

Computer •  At least $913 / week

[$47,476 / year], or at least

$27.63 / hour

 •  At least 90% of the salary level

[$822 / week] must be paid on

a “salary” or “fee” basis unless the employee is paid on an hourly basis and receives at least $27.63 / hour

•  Up to 10% of the salary level [$91 / week] may be satisfied with nondiscretionary bonuses or incentive payments

 •  The employee’s “primary duty” must be that of

an exempt computer employee, as described in the “Duties Tests” section of this guide

A more relaxed duties test applies to highly compensated employees earning at least $134,004 per year.

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THE SALARY BASIS TEST

Generally, for an employer to claim a white collar exemption from minimum wage and overtime for an employee, that employee must be paid on a salary basis.

Being paid on a “salary basis” means an employee regularly receives a predetermined amount of money each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Generally, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. In this Final Rule, for the first time employers will be able to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level, provided these payments are made on a quarterly or more frequent basis. Prior to this Final Rule, the Department required the entire salary level to be paid in each work week.

Deductions from pay are permissible only:

  • when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability;
  • when an exempt employee is absent from work for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing paid sick leave;
  • to offset amounts employees receive as jury or witness fees, or for military pay;
  • for penalties imposed in good faith for infractions of safety rules of major significance; or
  • for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.

 

An employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. If the employer makes improper deductions from an employee’s predetermined salary, that employee is not paid on a “salary basis.” If the employee is ready, willing, and able to work, deductions may not be made for time when work is not available.

The salary basis test does not apply to outside sales employees, teachers, and employees practicing law or medicine.

“Fee Basis”

Administrative, professional, and computer employees may be paid on a “fee basis” rather than on a salary basis. If the employee is paid an agreed sum for a single job, regardless of the time required for its completion, the employee will be considered to be paid on a “fee basis.” A fee payment is generally paid for a unique job, rather than for a series of jobs repeated a

number of times and for which identical payments repeatedly are made. To determine whether the fee payment meets the minimum salary level requirement, the test is to consider the time worked on the job and determine whether the payment is at a rate that would amount to at least $913 per week if the employee worked 40 hours. For example, an artist paid $500 for a picture that took 20 hours to complete meets the minimum salary requirement since the rate would result in $1,000 if 40 hours were worked.

THE SALARY LEVEL TEST

Standard salary level

Generally, an employee must be paid at least $913 per week to qualify for one of the white collar exemptions. Exempt computer employees may be paid at least $913 per week, or on an hourly basis of at least $27.63 an hour.

Employers may use nondiscretionary bonuses and incentive payments (including commissions)

to satisfy up to 10 percent of the standard salary level amount (up to $91 of the $913 per week threshold). Such payments must be paid on a quarterly or more frequent basis to count towards the salary level test. If an employee does not earn enough of a nondiscretionary bonus or incentive payment in a given quarter to meet the standard salary level, an employer may make a “catch-up” payment no later than the next pay period after the end of the quarter. Any such “catch-up” payment counts only toward the prior quarter’s salary. This is an exception to the salary basis test and appears in that regulatory provision.

The salary level test does not apply to outside sales employees, teachers, and employees practicing law or medicine. Academic administrative employees may qualify for exemption either by satisfying the standard salary level test or, alternatively, being paid on a salary basis at a rate at least equal to the entrance salary for teachers in the educational establishment at which the employee is employed.

Total annual compensation requirement for highly compensated employees

Employees who receive total annual compensation of at least $134,004, referred to as “highly compensated employees” (HCEs), are exempt from the minimum wage and overtime requirements of the FLSA if they meet a more relaxed duties test than is required for employees paid the standard salary level. HCEs are exempt if they customarily and regularly perform at least one of the duties of an exempt executive, administrative, or professional employee identified in the “Duties Tests” section of this guide. Nondiscretionary bonuses and incentive payments (including commissions) may be counted toward the $134,004 HCE total annual compensation requirement, but the employer must pay at least the full standard salary level of $913 per week on a salary or fee basis to qualify for this exemption. If an employee’s

total compensation in a given annual period fails to meet the $134,004 threshold, an employer may make a “catch-up” payment within one month of the end of the annual period. Any such catch-up payment counts only toward the prior year’s total annual compensation. If such a catch-up payment is not made within the timeframe allotted, the exemption is lost for the prior quarter and the overtime premium must be paid.

Basic Requirements for the Exemption of HCEs

Total Annual Compensation

Requirement

 Salary Basis Test Duties Test
•  $134,004 per year in total compensation, including payment of at least $913 / week •  100% of the standard salary level [$913 / week] must be paid on a “salary” or “fee” basis

•  The remainder of the HCE total annual compensation requirement may be paid in nondiscretionary bonuses or incentive payments [including commissions]

 •  The employee’s “primary duty” must be office or non-manual work

•  Must “customarily and regularly” perform any one or more of the exempt duties or responsibilities of an executive, administrative,

or professional employee, as described in the “Duties Tests” section of this guide

Nondiscretionary bonuses and incentive payments

Employers may use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level. For employers to credit these payments toward the salary level test, they must be paid on a quarterly or more frequent basis.

Nondiscretionary bonuses and incentive payments (including commissions) are forms of compensation promised to employees to induce them to work more efficiently or to remain with the company. Examples include individual or group production bonuses, and bonuses for quality and accuracy of work. Incentive payments, including commissions, are also considered non-discretionary as such payments are generally based on a prior contract or understanding, and employees generally have a contract right to the commission promised.

By contrast, discretionary bonuses are generally paid without prior contract, promise, or announcement, and the decision to provide the bonus and the payment amount is at the employer’s sole discretion. An example would be an “on-the-spot” award made without announcement and at the employer’s sole discretion (e.g., an unannounced year-end bonus). Discretionary bonuses cannot be used to satisfy the salary level requirement.

If an employee does not earn enough of a nondiscretionary bonus or incentive payment in a given quarter to retain his or her exempt status, the Department permits the employer to make a “catch-up” payment no later than the next pay period after the end of the quarter. If such a catch-up payment is not made within the timeframe allotted, the exemption is lost for the prior quarter and the overtime premium must be paid.

Special salary levels for employees in American Samoa or the motion picture industry

The regulations provide a lower special salary level requirement for American Samoa. The special salary level test for employees in American Samoa is 84 percent of the standard salary level, $767 per week.

The regulations also establish a special “base rate” threshold for employees in the motion picture industry. The base rate is $1,397 per week, or a prorated amount based on the number of days worked.

Automatic updating of the salary and compensation thresholds

To prevent the salary levels from becoming outdated, they will be updated automatically every three years. The Department of Labor will publish a notice with the new updated thresholds  at least 150 days before those updated amounts take effect. The first update will take effect on January 1, 2020; future automatic updates will take effect on January 1 of 2023, 2026, etc.

 

THE DUTIES TESTS

To qualify for any of the white collar exemptions, employees must meet certain tests regarding their job duties. The regulations establish separate duties requirements for executive, administrative, professional, outside sales, and computer employees, respectively.

Under the standard duties test, an employee’s primary duty must be that of an exempt executive, administrative or professional employee. “Primary duty” means the principal, main, major, or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

Employees can also qualify for exemption under the special rule for highly compensated employees, which pairs a more relaxed duties test with the higher HCE total annual compensation requirement. Under the HCE duties test, the employee’s primary duty must still consist of office or non-manual work, but the employee need only “customarily and regularly” perform one of the exempt duties of a bona fide executive, administrative, or professional employee, as described in the regulations. The duties requirements for each of the white collar exemptions are described below in greater detail.

 

Executive exemption

To qualify for the executive employee exemption under the standard test, all of the following job duties requirements must be satisfied:

  • The employee’s primary duty must be managing the enterprise in which the employee is employed, or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent (for example, one full-time and two half-time employees are equivalent to two full-time employees); and
  • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

 

Administrative exemption

To qualify for the administrative employee exemption under the standard test, all of the following duties requirements must be satisfied:

  • The employee’s primary duty must be 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
  • The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

Academic administrative personnel whose primary duty is performing administrative functions directly related to academic instruction or training in an educational institution, such as principals and vice-principals responsible for the operation of an elementary or secondary school, department heads at institutions of higher education, academic counselors who perform work such as administering school testing programs, assisting students with academic problems, and advising students concerning degree requirements, and others with similar responsibilities, are eligible for a special alternative salary level that does not apply to white collar employees outside of an educational institution. These academic administrative personnel are exempt from the FLSA’s minimum wage and overtime requirements if they are paid at least as much as the entrance salary for teachers at their educational establishment.

 

Professional Exemptions

Several different kinds of “professional” employees may qualify for the professional employee exemption. These include “learned professionals,” “creative professionals,” teachers, and employees practicing law or medicine.

Learned professionals

To qualify as a “learned professional” under the standard test, all of the following duties requirements must be satisfied:

  • 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, including law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical, and biological sciences, pharmacy, and other occupations that have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction, which means specialized academic training is a standard prerequisite for entry into the profession.

Creative professionals

To qualify for the creative professional employee exemption under the standard test, 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. This includes such fields as music, writing, acting, and the graphic arts.

Teachers

Teachers are exempt if their primary duty is teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers.

Employees practicing law or medicine

An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds an academic degree for the general practice of medicine is also exempt if the employee is engaged in an internship or resident program for the profession.

Outside sales exemption

To qualify for the outside sales employee exemption, all of the following duties requirements must be satisfied:

  • The employee’s primary duty must be making sales 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. “Sales” includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property; and
  • The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Computer employee exemption

To qualify for the computer employee exemption, the following duties requirements must be satisfied:

  • The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field; and
  • The employee’s primary duty must consist of:
  1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
  1. 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;
  1. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  1. A combination of the aforementioned duties, the performance of which requires the same level of skills.

Highly compensated employees

An employee with a primary duty of office or non-manual work who meets the HCE compensation requirements is exempt if the employee customarily and regularly performs at least one of the exempt duties of a bona fide executive, administrative, or professional  employee, as described in the regulations. An employee who performs such exempt duties on an isolated or occasional basis will not satisfy this minimal duties requirement.

Getting Legal Help

AXIS Legal Counsel’s Business Practice provides legal advice to numerous small businesses with a variety of legal matters, including business formations, contracts, deals, and transactions, business administration, corporate governance, operations, risk management / insurance,  labor/employment matters, intellectual property, healthcare, crisis management, directors/officers, private/data security, technology, statutory/legal compliance, and business litigation. AXIS represents businesses, corporations, LLCs, LLPS, partnerships, and startups in need of a corporate lawyer, for business legal matters as well as business litigation, such as disagreements, non-solicit agreements, non-competes, trade secrets, and other disputes with businesses. We are also experienced in providing assistance to business clients concerning business contracts, corporate formation matters, contracts and transactions, business litigation, business legal advice for Corporations, LLPs, LLCs, Partnerships, Small Business, Startups, and others involving corporate law.

If you are seeking a business lawyer, or for information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact [email protected] or call (213) 403-0130 for a confidential consultation.

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