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5 types of jobs that are overtime exempt under the FLSA

Under the Fair Labor Standards Act (FLSA), employers must generally pay employees overtime if they work more than 40 hours a week. But, one of the most common misconceptions about overtime pay is that all employees are eligible for overtime pay, regardless of their occupation or position.

The reality is, while the FLSA says most employees get overtime pay, this rule may not apply to every worker. In fact, there are several types of jobs that are expressly exempt from receiving overtime pay under the FLSA, including occupations that may fall into one of these five categories: administrative employees, computer employees, executives, outside sales personnel, and professional employees.

1. Administrative overtime exemption

In administrative roles, employees exercise independent judgment and display a high level of confidentiality.

The duties associated with these roles typically involve the performance of office work (that is, non-manual work) that is directly related to the management or general business operations of the business or its customers.

Their main job duties include having the authority to exercise independent judgment on significant business matters. For example, how much authority does the employee have regarding daily business operations and running the company? Is the employee expected to concept, create, and execute operations policies? Does the employee have the authority to make a decision? These may all pertain to the employee having a certain level of autonomy to make decisions on behalf of the company.

In these roles, the employee must meet the requirements just mentioned and earn a salary or fee of at least $684.00 a week to be overtime exempt under the FLSA.

2. Computer employee overtime exemption

Computer roles are also often exempt from overtime pay. This particular FLSA overtime exemption typically applies to employees with great knowledge and experience in the computer field, such as:

  • Computer programmers
  • Computer systems analysts
  • Software architects
  • Software engineers
  • Workers with similar skills in the computer field

For employees to be overtime exempt in these roles, they must meet the requirements just mentioned and earn a salary of at least $684.00 a week gross pay, or, if compensated on an hourly basis, at a rate not less than $27.63 an hour.

In addition to all the above, according to the Department of Labor, the employee's primary duties should include:

  • The application of systems analysis techniques and procedures — including consulting with users — to determine hardware, software, or system functional specifications.
  • 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.
  • The design, documentation, testing, creation, or modification of computer programs related to machine operating systems.
  • A combination of the aforementioned duties, the performance of which requires the same level of skills.

The computer employee exemption does not include manual or physical labor such as manufacturing or repairing computer hardware and related equipment.

3. Executive overtime exemption

Executive roles are responsible for managing the business, a department of the company, or a particular branch of the business.

They must also be in a position to hire or fire other employees, or their recommendations for other employees' advancement, firing, hiring, or promotions must be given weight. Their roles often direct the work of at least two or more full-time employees.

In these roles, the executive employee must meet the requirements just mentioned and earn a salary of at least $684.00 a week in order to be overtime exempt.

4. Outside sales overtime exemption

To qualify for the outside sales exemption, an employee must either regularly or customarily work away from the employer's place of business and the employee's primary duty must be one of the following:

  • Making sales
  • Obtaining orders/contracts for services or facility use

In these roles, the minimum weekly salary requirement doesn't apply.

5. Professional overtime exemption

One of the most common overtime exemptions is the professional exemption, which can fall into one of two categories: learned professionals and creative professionals. And like many of the other exemptions, there is the requirement of $684.00 a week to qualify for this exemption.

In the case of learned professionals, the employee's work must require "knowledge of an advanced type," typically in a field of learning or science that the employee acquires by specialized instruction. In many cases, the work is characterized as intellectual in nature and requires the exercise of discretion and judgment.

Examples of the learned professional overtime exemption may include:

  • Accountants
  • Actuaries
  • Architects
  • Biologists
  • Chemists
  • Doctors
  • Engineers
  • Lawyers
  • Professors
  • Teachers

Alternatively, the primary duties of creative professionals include work that requires imagination, invention, or talent in a recognized artistic or creative field. This particular exemption is typically determined on a case-by-case basis.

Career examples of creative professional overtime exemption may include:

  • Actors
  • Cartoonists
  • Composers
  • Graphic designers
  • Musicians and composers
  • Certain painters
  • Soloists
  • Writers (essayists, novelists, etc.)

They perform work that involves designing, concepting, brainstorming, imagining, inventing, re-inventing, and thereby producing unique and fresh artistic or innovative materials.

Want to learn more about FLSA overtime exemptions?

Determining which employees are overtime exempt under the FLSA, and which are not, can be very time-consuming and complex. Indeed, the information above is merely a small portion of what employers and employees need to know about FLSA exemptions and overtime law. And to add even more to the confusion is the fact that some states have passed their own laws regarding overtime pay.

If you would like the most up-to-date guidance on the employment-related laws that matter most to you, including overtime pay, try Practical Law today. Get your free 7-day trial of Practical Law now.

The content appearing on this website is not intended as, and shall not be relied upon as, legal advice. It is general in nature and may not reflect all recent legal developments. Thomson Reuters is not a law firm and an attorney-client relationship is not formed through your use of this website. You should consult with qualified legal counsel before acting on any content found on this website.


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