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Fair Labor Standards Act (FLSA) - Exemptions

Some employees are exempt from the overtime pay provisions, some from both the overtime pay and minimum wage provisions, and some from the child labor provisions of the Federal Fair Labor Standards Act (FLSA). Exemptions are narrowly construed against the employer asserting them. Consequently, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee's actual duties before assuming that the exemption might apply to the employee. The ultimate burden of supporting the actual application of an exemption rests on the employer.

Exemptions are typically applied on an individual workweek basis. Employees performing exempt and non-exempt duties in the same workweek are normally not exempt in that workweek.

Examples of Exemptions

Following are examples of exemptions that are illustrative, but not all-inclusive. These examples do not define the conditions for each exemption.

Exemptions from Both Minimum Wage and Overtime Pay

·          Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in Department of Labor regulations);

·          Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery;

·          Farm workers employed by anyone who used no more than 500 "man-days" of farm labor in any calendar quarter of the preceding calendar year;

·          Casual babysitters and persons employed as companions to the elderly or infirm.

Exemptions from Overtime Pay Only

·          Certain commissioned employees of retail or service establishments; auto, truck, trailer, farm implement, boat, or aircraft salesworkers, or parts-clerks and mechanics servicing autos, trucks, or farm implements, who are employed by nonmanufacturing establishments primarily engaged in selling these items to ultimate purchasers;

·          Employees of railroads and air carriers, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;

·          Announcers, news editors, and chief engineers of certain nonmetropolitan broadcasting stations;

·          Domestic service workers living in the employer's residence;

·          Employees of motion picture theaters; and

·          Farmworkers.

Partial Exemptions from Overtime Pay

·          Partial overtime pay exemptions apply to employees engaged in certain operations on agricultural commodities and to employees of certain bulk petroleum distributors.

·          Hospitals and residential care establishments may adopt, by agreement with their employees, a 14-day work period instead of the usual 7-day workweek, if the employees are paid at least time and one-half their regular rates for hours worked over 8 in a day or 80 in a 14-day work period, whichever is the greater number of overtime hours.

·          Employees who lack a high school diploma, or who have not attained the educational level of the 8th grade, can be required to spend up to 10 hours in a workweek engaged in remedial reading or training in other basic skills without receiving time and one-half overtime pay for these hours. However, the employees must receive their normal wages for hours spent in such training and the training must not be job specific.

Commonly Used Exemptions

Following is a list of some of the more commonly used exemptions. This list is not intended to be all-inclusive. Other, less commonly used FLSA exemptions are listed below after this section.

Commissioned sales employees

Commissioned sales employees of retail or service establishments are exempt from overtime if more than half of the employee's earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked.

Computer professionals

Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least a specified amount are exempt from the overtime provisions of the FLSA.

Drivers, driver's helpers, loaders and mechanics

Drivers, driver's helpers, loaders and mechanics are exempt from the overtime pay provisions of the FLSA if employed by a motor carrier, and if the employee's duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce.

Farmworkers

Farmworkers employed on small farms are exempt from both the minimum wage and overtime pay provisions of the FLSA. Young workers employed on small farms, with parental consent, are also exempt from the child labor provisions of the FLSA. Other farmworkers are exempt from the FLSA's overtime provisions.

Salesmen, partsmen and mechanics

Salesmen, partsmen and mechanics employed by automobile dealerships are exempt from the overtime pay provisions of the FLSA.

Seasonal and recreational establishments

Employees employed by certain seasonal and recreational establishments are exempt from both the minimum wage and overtime pay provisions of the FLSA.

White collar employees

White collar employees employed in executive, administrative, professional or outside sales positions (as defined in Department of Labor regulations) and who are paid on a salary basis are exempt from both the minimum wage and overtime provisions of the FLSA.

Other FLSA Exemptions

These abbreviations are used in the list of exempted occupations below: (MW = minimum wage, OT = overtime, CL = child labor).

·      Aircraft salespeople - OT

·      Airline employees - OT

·      Amusement/recreational employees in national parks/forests/Wildlife Refuge System - OT

·      Babysitters on a casual basis - MW & OT

·      Boat salespeople - OT

·      Buyers of agricultural products - OT

·      Companions for the elderly - MW & OT

·      Country elevator workers (rural) - OT

·      Disabled workers - MW

·      Domestic employees who live-in - OT

·      Farm implement salespeople - OT

·      Federal criminal investigators - MW & OT

·      Firefighters working in small (less than 5 firefighters) public fire departments - OT

·      Fishing - MW & OT

·      Forestry employees of small (less than 9 employees) firms - OT

·      Fruit & vegetable transportation employees - OT

·      Homeworkers making wreaths - MW, OT & CL

·      Houseparents in non-profit educational institutions- OT

·      Livestock auction workers - OT

·      Local delivery drivers and driver's helpers - OT

·      Lumber operations employees of small (less than 9 employees) firms - OT

·      Motion picture theater employees - OT

·      Newspaper delivery - MW, OT & CL

·      Newspaper employees of limited circulation newspapers - MW & OT

·      Police officers working in small (less than 5 officers) public police departments - OT

·      Radio station employees in small markets - OT

·      Railroad employees - OT

·      Seamen on American vessels - OT

·      Seamen on other than American vessels - MW & OT

·      Sugar processing employees - OT

·      Switchboard operators - MW & OT

·      Taxicab drivers - OT

·      Television station employees in small markets - OT

·      Truck and trailer salespeople - OT

·      Youth employed as actors or performers - CL

·      Youth employed by their parents - CL

Additional Information

For additional information, you may call the U.S. DOL Wage-Hour toll-free information and helpline, available 8am to 5pm in your time zone, at 1-866-4USWAGE (1-866-487-9243).

You may also visit the DOL Wage-Hour website at:
http://www.dol.gov/esa/whd/

For more information about the application of these exemptions, contact your local U.S. Department of Labor Wage and Hour District Office. It is listed in most telephone directories under United States Government, Labor Department. Contact information and service areas, listed by State, are available online at:
http://www.dol.gov/esa/contacts/whd/america2.htm

Also see:

Fair Labor Standards Act (FLSA) - Overview

Fair Labor Standards Act (FLSA) - Coverage

Fair Labor Standards Act (FLSA) - FAQ

Fair Labor Standards Act (FLSA) - Child Labor

Fair Labor Standards Act (FLSA) - Special Minimum Wages

Fair Labor Standards Act (FLSA) - Certification for Special Minimum Wages

Source

Information for this topic was drawn from the DOL website at:
http://www.dol.gov/elaws/esa/flsa/screen75.asp
http://www.dol.gov/esa/regs/compliance/whd/hrg.htm

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