FLSA Status: Exempt or Nonexempt?

FLSA Overtime Fact Sheet | Fuse Workforce Management


《公平劳工标准法》(FLSA)于1938年首次颁布。它设定了我们所知道的40小时工作周,以及美国工人的第一个最低工资和加班费标准As such, the FLSA covers certain employees entitled to labor law standards like overtime pay and minimum wage. YourFLSA状态决定你是否covered by the FLSA. Employees with FLSA coverage have FLSA non-exempt status. Employees without FLSA coverage have FLSA exempt status.


FLSA Overtime Fact Sheet: Using Status to Classify Employees

How do you know when an employee'sFLSA身份是免税的? Employers pay exempt employees for the job duties they perform, not the hours it takes them to do the work. Therefore, exempt employees are not eligible for FLSA coverage and are not entitled to certain labor standards like overtime pay and minimum wage.

FLSA非豁免:The provisions of the FLSA cover non-exempt workers for minimum wage standards, overtime pay, and other labor standard protections. Employers must pay their FLSA non-exempt employees the federal minimum wage (at least) for hours worked. For all hours worked over 40 hours in a workweek, the employer must pay non-exempt employees overtime (time and one-half the regular rate of pay).

FLSA EXEMPT:Unlike non-exempt workers, FLSA coverage does not protect exempt workers. Employers pay exempt employees for the job they do, not the hours it takes them to do the work. Simply put, exempt employees are exempt from coverage.

In some cases, other federal labor laws override the FLSA. As a general rule, if another federal labor law governs a job, the FLSA does not apply.


First, you should determine whether the worker is anemployee or independent contractor.If you define your workers incorrectly, you could be liable for unpaid taxes and fines.

The IRS provides three普通法规则for determining worker status. Is the worker an independent contractor or employee? Ask these questions:

  1. 行为:公司是否控制或有权控制工人的工作以及工人如何完成工作?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If the answer is ‘yes’ to these questions, your worker is probably an employee, not an independent contractor. Though, the IRS says there is no magic formula that determines status. The most important thing to look at when identifying a worker is the entire relationship between the worker and employer. Then, document all information about this relationship.

Once you have determined that your employees, you must now identify their FLSA status: exempt or nonexempt.

有几项考虑因素决定员工FLSA身份,包括薪水基础,薪水水平和履行职责。In order to determine employee FLSA status classification, an employer must answer the questions about the employee and his or her duties. The Department of Labor calls these questions the FLSA exemption test.


Toclassify employee FLSA status,您必须回答以下问题:

  1. Does the employee earn a salary?

  2. 员工每周或每年赚多少钱?

  3. Does the employee’s role require certain responsibilities or functions that the Department of Labor considers exempt duties?

尽管有少数例外,但员工必须遵守上述所有三项测试,才能被认为免于FLSA覆盖范围(这意味着FLSA不涵盖)。There are some exceptions, however, where other federal labor laws override FLSA coverage. TheFLSA states that, as a general rule, if a job is governed by another federal labor law, the FLSA does not apply.

An employee passes the FLSA exemption test if:

  • 员工以薪水为基础。
  • The employee earns at least $23,600 per year or $455 per week.
  • 员工履行豁免职责。

The DOL’s exempt duties typically include these roles:

Salary Basis Test


雇员以薪水支付的雇员可赚取保证的最低付款金额任何amount of work done in a given week. This minimum payment includes accrued PTO days for vacation and sick days. Salaried employees may earn above the guaranteed minimum amount of pay through bonuses or other incentives but they may never earn less.

There are permissible and impermissible reductions in salary basis level for employees. Permissible reductions could include docked pay due to disciplinary suspension or an employee taking more sick/personal dayshe/she has accrued. This does not affect an employee's FLSA exempt status. If an employer docks an employee's pay for impermissible reasons (and the employee does not reach the guaranteed minimum amount of payment), it would have an effect on that employee's FLSA status and the employee would be classified with FLSA non-exempt status.


Does the employee earn above the salary threshold?

If an employee earns a salary above the FLSA threshold of $23,600 per year ($455 per week), the employee is exempt from overtime pay and other FLSA coverage.

Exempt Duties Test

Does the employee perform "white collar" exempt duties?

The Department of Labor determines exempt duties based on the primary duty and other duties the employee does in他或她的工作。这不是由员工的职位或描述确定的,而是由所执行的实际工作决定。白领免税职责通常属于roles such as高管,管理员, and otherprofessionalpositions requiring certain degree levels or high-level work.



TheFLSA执行豁免包括s the following responsibilities:

  • 定期监督至少两个或更多其他全职员工。
  • 管理 asthe primary duty of the job.
  • Has input in other workers' employment such as hiring, firing, and promotions.

Some examples 包括CEOs, mid-level managers, and shift managers.

FLSA Learned Professional Exemption

TheFLSA Learned Professional Exemption包括s primary duties which require advanced knowledge in order to perform including:

  • Consistent exercise of judgment and discretion
  • 科学或学习领域的先进知识(包括法律,医学,会计,神学,精算计算,教学,建筑,药房和其他与机械艺术或熟练行业不同的职业)
  • 高级知识是由长时间的专业教学课程获得的。
  • 需要从各种事实或情况中分析,解释或扣除。


Some examples include lawyers, doctors, teachers, accountants, and clergy.

FLSA Administrative Exemption

TheFLSA Administrative Exemption包括以下主要职责:

  • Office or non-manual work directly related to business operations or management
  • Exercise of judgementand discretion
  • 支持生产或线路员工,并保持业务运行,而无需从事实际产品或业务的实际产品或销售。

Some examples 包括Human Resources, Payroll, Benefits Management, Marketing, Public Relations, and certain computer-related jobs. Read more about theFLSA计算机豁免在这里。

FLSA and overtime rules FAQs

What is Back Pay?

Back pay is a retrospective payment relating to a prior pay period. This typically happens due to salary increase or incorrect rate of pay in the cases of minimum wage and overtime pay.

Here is a劳工部的指南on FLSA methods employees may take to recover unpaid minimum wage or overtime pay:

(1) The Wage and Hour Division may supervise payment of back wages.

(2) The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages.

(3) An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.

(4) The Secretary of Labor may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

If an employee has received any back pay wages under the Wage and Hour Division or the Secretary of Labor has filed suit to recover lost wages, the employee may not bring suit under the FLSA.

What is considered work?

According to the FLSA (and the courts), “work” includes all time spent performing job-related activities which (a) genuinely benefit the employer, (b) which the employer "knows or has reason to believe" are being performed by an employee, and (c) which the employer does not prohibit the employee from performing. These can include activities performed during "off-the-clock" time, at the job site or elsewhere, whether "voluntary" or not.

What is overtime?

The FLSA sets a threshold of hours to be worked in a single seven-day workweek at 40 hours. Any time worked over the threshold is consideredovertime. Some jobs like, medical or government, may have different thresholds.



Is "全天候的工作illegal?

是的!任何不全天的工作都是非法的。无论是否在时间表上计算这项工作,都应为工作人员支付任何工作时间。即使是没有明确要求但允许的工作也必须得到补偿。某些most common types of the off-the-clock work包括:

  • 准备工作如准备工作,以便在轮班开始或将设备转移到工作场所之前打开餐厅。
  • 轮班期间“应该已经完成​​”的换换后工作。
  • Rework a project to correct errors or when project objectives change.
  • 行政工作,例如文书工作或后续工作,甚至是员工培训。
  • 等待工作,当没有立即可用的情况下,需要工人等待任务。

Under the FLSA Statute of Limitations, how long does an employee have to file a claim for unpaid overtime wages?

Do you know how long your employees have to file a lawsuit for unpaid overtime wages在下面FLSA限制法规?

The basic answer is two years-to-date after the wage violation, unless the employer willfully violated the FLSA, in which case the employee has three years to file.

If the employee experienced ongoing wage violations (not just one time), he or she will only be able to recover unpaid wages (called back pay) for the two years prior to filing the claim.

What is the difference between a wage claim and a lawsuit?

员工可以file a wage claim随着DOL的工资和小时部门,在某些州,员工可能能够向其州劳工部提交。索赔不涉及法院制度,而诉讼则不涉及。如果无法解决索赔,员工可以提起诉讼 - 如果仍有时间FLSA限制法规. A lawsuit may occur if the claim could not be resolved or if the claim was impractical, in which case an employer may take the suit to court.

Note that some states have different requirements for filing wage claims. In Delaware, for example, employees must file wage claimsat least 90 days beforethe FLSA statute of limitations ends. In New Jersey, employees may claim wages worth $30,000 or less.


Prepare for the FLSA Changes to Overtime Rules with FLSA Resources

规则正在改变。现在,比以往任何时候都更employers need toprepare their businessesand Human Resources needs to定义工人并对员工进行分类正确的方法(使用FLSA豁免测试)避免了IRS和劳工部的重大处罚。


Use these Fair Labor Standards Act resources to help keep your organization compliant:

Guide to FLSA Status & Changes to Overtime Rules [Ebook]

3 Steps to Classify Employees [Worksheet]

FLSA articles from the Fuse Blog

FLSA Consultation for Your Organization


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