FLSA Exempt vs Non-Exempt Classification
$684/wk
Salary Threshold
$35,568 per year minimum
40 hrs
Standard Workweek
Overtime kicks in after this
3
Duties Tests
Executive administrative professional
What the FLSA Governs
The Fair Labor Standards Act of 1938 establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Non-exempt employees who work more than 40 hours in a workweek must be paid overtime at 1.5 times their regular rate.
To classify an employee as exempt from overtime, the employer must demonstrate that the employee meets both the salary basis test AND one of the duties tests. Failure to properly classify employees is one of the most common FLSA violations.
The Two-Part Exemption Test
Part 1
Salary Basis
$684/week minimum
Part 2
Duties Test
Exec, Admin, or Prof
EXEMPT
Both parts must be satisfied. Salary alone is not enough. Duties alone are not enough.
The Three Primary Duties Tests
each test has a unique feel, learn the differencesExecutive Exemption
Primary duty is managing the enterprise or a customarily recognized department or subdivision
Customarily and regularly directs the work of two or more other full-time employees (or equivalents)
Has authority to hire or fire, or their recommendations on hiring, firing, advancement, or other status changes carry particular weight
Administrative Exemption
Primary dutyis office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers
Includes the exercise of discretion and independent judgment with respect to matters of significance
Professional Exemption
Primary duty is work requiring advanced knowledge in a field of science or learning, customarily acquired by a prolonged course of specialized intellectual instruction
Also covers creative professionals whose primary duty requires invention, imagination, originality, or talent in a recognized creative or artistic field
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Practice FLSA QuestionsThe Three Exemptions Compared
| Feature | Executive | Administrative | Professional |
|---|---|---|---|
| Primary Duty | Managing the enterprise or a department | Office/non-manual work related to management or business operations | Work requiring advanced knowledge in a field of science or learning |
| Key Test | Customarily directs 2+ employees | Exercises discretion and independent judgment on significant matters | Knowledge acquired by prolonged, specialized study (not just experience) |
| Typical Roles | Department managers, directors, VPs | HR generalists, financial analysts, marketing managers | Lawyers, doctors, engineers, architects, teachers |
| Common Trap | Managing 1 person does NOT qualify | Following a manual or checklist = NOT discretion | Technicians and skilled trades usually do NOT qualify |
Exam Traps
four ways they will try to trip youJob title does NOT determine exempt status
Calling someone a "Manager" or "Director" does not make them exempt. The classification depends on actual duties performed, not the title on the business card. The exam will present a "manager" who supervises no one and ask if they are exempt. The answer is no.
Improper salary deductions destroy the exemption
If an employer docks an exempt employee's pay for partial-day absences, quality of work, or similar reasons, it can destroy the salary basis for all employees in the same job classification. This is called the "window of correction" issue. The safe harbor provision allows employers to reimburse and correct, but repeated violations eliminate the exemption.
Employees cannot waive their right to overtime
Even if an employee signs an agreement waiving overtime pay, it is unenforceable. FLSA rights cannot be waived by private agreement. The employer owes the overtime regardless of any "agreement" to the contrary.
Comp time is not permitted in the private sector
Government employers can offer compensatory time off instead of overtime pay. Private-sector employers cannot. If a non-exempt private-sector employee works 45 hours, the employer must pay for 5 hours of overtime at 1.5x, period. Offering "time off next week" instead is a violation.
The Two-Part Test
Salary PLUS duties. Both must pass. Meeting the salary threshold alone is not enough. Passing a duties test alone is not enough. Both.
Duties Over Titles
The exam cares about what you DO, not your title. A "Senior Vice President" who answers phones all day is non-exempt. A "Coordinator" who exercises independent judgment may be exempt.
Imagine overtime pay is a club that every worker gets into by default. Non-exempt means you are in the club and you get overtime pay when you work more than 40 hours.
Exempt employees are on the other side of a velvet rope. They do not get overtime. But to get past the rope, you need two things: a high enough salary ($684/week) AND your actual duties must match one of three specific job descriptions.
The bouncer checks your ID (salary) and your invitation (duties test). If your salary is below $684/week, you are automatically in the overtime club, no matter what your job title says. If your salary clears the bar, the bouncer then checks whether your day-to-day work genuinely fits the Executive, Administrative, or Professional category.
No shortcuts past the rope. No waivers. No "but my boss said I am exempt." The bouncer only cares about salary and duties. Everything else is irrelevant.
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