How to Determine if a Job is Exempt or Non-Exempt

exemptvsnonexemptemployees

The terms non-exempt and exempt can cause a lot of confusion for workers and employers. Exemption status determines if you receive overtime pay for working more than 40 hours in a work week. The exemptions are governed by the Fair Labors Standard Act (FLSA).

Non-exempt 

Non-exempt employees must be paid at least the minimum wage and overtime pay for any work performed over 40 hours worked in a week. This time must be paid at a rate of time and one half of their regular pay rate for each hour of overtime.

Exempt

Exempt employees are not granted the same protection under the FLSA, therefore they are paid the same dollar amount regardless of the number of hours worked in a week. Exemptions from the overtime requirements of the FLSA are just that—exceptions to the rule. They are very narrowly construed, and as the employer, you will always bear the burden of proving that you have correctly classified an employee as exempt. When in doubt on the classification of a job, it is best to make them non-exempt.

For most professions, an individual is an exempt employee if he or she meets all of the following three tests: 

  1. Is paid at least $23,000 per year ($455 per week)
  2. Is paid on a salary basis
  3. Performs exempt job duties

But how do you know if the individual performs exempt duties?  As a general rule, exempt employees tend to perform relatively high-level duties with respect to the company’s overall operations.

The most common FLSA exemptions are white collar exemptions and are broken down into five main categories, including: 

  1. Executive
  2. Administrative
  3. Professional
  4. Outside sales
  5. Computer

Other issues

There are also some other concerns to consider when determining non-exempt and exempt status.

  • Time off. Although there are exceptions, it’s usually illegal to give non-exempt employees time off instead of paying them overtime.
  • Child labor. Federal and state laws include special requirements to protect workers under the age of 18. These laws can affect the type of work, wages, and hours that an employee can complete.
  • Breaks. Employers need to make sure they follow federal and state law requirements regarding breaks, including meal breaks, for their employees.

If you have any additional questions regarding non-exempt and exempt employees, and are an ERC Member, contact our HR Help Desk or visit the U.S. Department of Labor (DOL) FLSA page at http://www.dol.gov/whd/flsa/.

By providing you with information that may be contained in this article, the Employers Resource Council (ERC) is not providing a qualified legal opinion concerning any particular human resource issue. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.  We also recommend that you consult your legal counsel regarding workplace matters when and if appropriate.

HR, compliance, termination, or compensation questions?

ERC has a team of HR Help Desk Advisors to provide timely and trusted answers.

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Yelling at Co-Workers and Employees: Is It Ok?

employee conduct in the workplace Yelling at Co-Workers and Employees: Is It Ok?

Yelling; it’s a part of human communication. Sometimes it’s good and sometimes not. People yell for many different reasons. Maybe it’s to assert themselves over others, or to make their presence known. Maybe they want to incite confrontation or satisfy an ego.

Read this article...

The Unique World of “Leave of Absence” Policies

When an employee takes a “leave of absence," this time away from work can take many forms depending on the situation. From the Family & Medical Leave to Short Term Disability to jury duty to bereavement to military leave, these various policies and structures do share the common purpose of allowing an employee to take time away from work above and beyond vacation time or sick days, while also protecting the employer from potential abuses of these leave requests.

Read this article...

3 Facts about Measles and the Workplace

3 Facts about Measles and the Workplace

In 2015, measles was rising health concern in the country. Organization's everywhere wondered what they should do in the event that one of their employees is diagnosed with measles, and how they can prevent other employees from future contact.

Here are four facts about what can and cannot happen when measles comes to your office.

Fact #1:

The Americans with Disabilities Act (ADA) no longer provides short-term impairments from its definition of "disability." According to an article on workforce.com, "there is an argument to be made that the measles could qualify as an ADA-disability, provided that it substantially limits a major life activity of the sufferer."

However, considering people infected with measles are out for about a  week, it would be difficult to make a case that a one-week impairment could "substantially limit a major life activity" of the infected.

Fact #2:

According to the Equal Employment Opportunity Commission, private employers can require vaccinations as long as they are willing to accommodate employees' disabilities and religions. Employers can review any of these accommodations under the ADA and Title VII of the Civil Rights Act, as well as similar state and local laws.

However, many states do not have a mandatory policy in place. It also depends on the sector in which you work. An organization in the healthcare sector may have a mandatory vaccine program for its employees since they are more likely to run the risk of coming in contact with a disease like the measles. However, organizations in other industries don't necessarily run the same risks.

The Equal Employment Opportunity Commission (EEOC) states, "Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." Even though you run risks when mandating your employees to get vaccinated, another option is to always hold an education seminar on the risks of not being vaccinated.

Fact #3:

Employers can use an ADA-compliant pandemic employee sample survey to give to their employees. On the survey, employees can be asked medical and non-medical questions about the ability of the employee to come to work, in the event of a pandemic. This survey will help give employers information they need to plan if a pandemic happens, and how to shield employers from receiving information about any illnesses that employees might have.

Before an issue arises in your workplace, it's a best practice to stay up-to-date on the Center for Disease Control, federal, state, and local public health guidelines and to also stay mindful of any anti-discrimination laws.

HR, compliance, termination, or compensation questions?

ERC has a team of HR Help Desk Advisors to provide timely and trusted answers.

Contact the Help Desk

Do You Have an Interoffice Dating Policy and Guidelines?

interoffice dating interoffice dating policy Does-Your-Office-Have-Dating-Policies-and-Guidelines

According to a 2013 survey of 8,000 workers by the job-search website CareerBuilder.com, 4 out of 10 employees have dated someone they work with. Valentine's Day it's a great time to look at your interoffice dating policy on workplace romances.

With more singles in the workforce spending a majority of their day at the office, it's no wonder this number is so high. The survey also revealed that 72% of those workers did not try to hide their relations- compared to 46% in 2010. This large percentage could be attributed to the fact that millennials are more comfortable with office romances then baby boomers were. Office romance policies are different at every organization.

However, there are some questions to consider to make sure there are no discrepancies in your office.

  • Do you have a policy in place?
  • How does it define the limits to relationships between employees?
  • Has this issue come up recently among your employees?
  • Should you consider implementing one? 

What are companies doing?

According to a 2013 survey conducted my SHRM, 54% of organizations do not have a policy in place when it comes to interoffice dating. However, that amount is up 42% since 2005, where that number was only up 25%. 

What are some guidelines?

Of the amount surveyed, an astounding 99% of organization's that allowed interoffice dating did not allow them between a supervisor and a direct report.

45% of office romances between employees of different rank were permitted. And 35% allowed a romantic relationship between employees who reported to the same supervisor.

The survey also suggested why conflict arises with interoffice relationships, such as:

  • Co-workers gossiping
  • The perception that the employee is climbing the corporate ladder to get ahead
  • If the relationship doesn't work out- will there be tension in the office?

If there is a conflict of interest, organization's report that they have handled situations by transferring one of the employees to another department (34%) and 32% offer counseling to the couples and their supervisor to resolve the best way to move forward.

HR, compliance, termination, or compensation questions?

ERC has a team of HR Help Desk Advisors to provide timely and trusted answers.

Contact the Help Desk

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