September 2016 Volume X No. 4 Taking Care of Business
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FLSA Duties Test

As with salary alone, under the FLSA, the job title never determines the exempt status. Rather, an employee’s specific job duties and earnings must meet all the requirements.

Executive Exemption

To qualify for the executive employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $913 per week1;

  • The employee’s primary duty must be managing the enterprise, 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; 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 Exemptions

To qualify for the administrative employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week;

  • 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 includes the exercise of discretion and independent judgment with respect to matters of significance.


1The new salary level of $913 per week will replace the pervious amount of $455 per week on December 1, 2016.



Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:
  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week;

  • 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; and

  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
To qualify for the creative professional employee exemption, all of the following tests must be met:
  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week;

  • 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.


Computer Employee Exemption

To qualify for the computer employee exemption, the following tests must be met:
  • The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week or;

  • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;

  • 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;

    2. 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;

    3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

    4. A combination of the aforementioned duties, the performance of which requires the same level of skills.


Outside Sales Exemption

To qualify for the outside sales employee exemption, all of the following tests must be met:
  • The employee’s primary duty must be making sales (as defined in the FLSA), 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; and

  • The employee must be customarily and regularly engaged away from the employer’s place or places of business.


Highly Compensated Employees

Highly compensated employees performing office or non-manual work and paid total annual compensation of $134,0042 or more are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.


2The highly compensated employee salary exemption amount will also change on December 1, 2016 to $134,004 from $100,000.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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