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Why is my Employee Non-Exempt?

1.     What’s the basic difference between “exempt” and “non-exempt” employees?

Non-exempt employees are covered by the appropriate minimum wage and overtime provisions of the FLSA; exempt employees are not, hence they are “exempt” from the overtime and minimum wage provisions of the FLSA.


2.     What’s the major distinction between an exempt employee and a non-exempt one, in terms of how they work and fulfill their job responsibilities?

A non-exempt employee must be paid for every hour worked and is considered “hourly” under the FLSA. An exempt employee is “salaried” (meaning that she/he receives a fixed amount of pay that does not vary based on the actual hours worked.) An exempt employee is expected to “work to get the job done” no matter how many hours in a work week that may take. Exempt employees are not covered by the overtime provisions of the FLSA, nor may they receive any extra pay to do their regular assigned duties.

3.     What determines if an employee is exempt or non-exempt?

In order to be considered exempt, the position must meet the salary and duties test as required by the FLSA. The salary test is the simplest: At the present time, if an employee is not making at least $684 per week or $35,568 (gross) per year for 12- month, full-time employment, then the employee may not be considered exempt by the employer, even if the position meets the “duties test.”


4.     What’s the “duties test?”

The duties test permits employees to be considered exempt if their jobs are bona fide executive, administrative or professional positions. An executive employee must have as his or her primary duty the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision. An administrative employee must have as his or her primary duty the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers. A professional employee must have a primary duty that is the performance of work requiring knowledge of an advanced type -- including the consistent exercise of discretion and judgment -- in a field of science or learning, customarily acquired by a prolonged course of specialized intellectual instruction.


In order to be designated an exempt employee, the “salary test” described above must be met, along with the “duties test” and any secondary criteria laid out by the FLSA. Satisfying either “test” alone is not sufficient qualify for exemption.


5.     Are all jobs in a given title or job classification in the same exemption status?

Usually, but not necessarily, because it is the salary and duties assigned a position that determine its exemption status. Two jobs in the same title and paygrade could be different (one exempt and one non-exempt).

6.     How can I get more information?

Additional details about the FLSA exemption status is available by reviewing the Department of Labor fact sheet on Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees.  Also feel free to contact your HR Partner or the Compensation unit at We’ll be glad to answer your questions to help you ensure you are properly paying your employees in accordance with this law.