Exempt Employees

An employee is not entitled to receive overtime compensation under FLSA if the employee is an "exempt" employee within the meaning of one of the following exemptions. An employee must be paid under FLSA the required minimum weekly salary of $455.00 if the employee is employed as an exempt “Executive,” “Administrative,” “Professional,” "Computer" or "Highly Compensated" Employee. Individuals who are employed as exempt Executive and Administrative employees within the meaning of New York State law must be paid the required minimum weekly salary based on the N.Y.S. location and size of their employer as opposed to the $455.00 weekly salary required by FLSA for these exemptions. The Wage Order Summary for these required exempt employee minimum weekly salary levels can be accessed at the following link.

Administrative Exemption: This exemption applies provided that (1) 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 (2) the employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Executive Exemption: This exemption applies provided that (1) the employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; (2) the employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and (3) the employee must have the authority to hire or fire other employees, etc.

Learned Professional Exemptions: This exemption applies provided that (1) the employee's primary duty must be the performance of work requiring advanced knowledge; (2) the advanced knowledge must be in a field of science or learning such as law, medicine, accounting, engineering, etc.; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Creative Professional Exemption: This exemption applies provided that an employee's primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. This includes such fields as, for example, music, writing, acting and the graphic arts.

Outside Sales Exemption: This exemption applies provided that (1) the employee's primary duty must be making sales 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 (2) the employee must be customarily and regularly engaged away from the employer's place or places of business. No minimum salary requirement.

Computer Employee Exemption: This exemption applies provided that (1) an employee must be compensated at the hourly rate of $27.63; (2) 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; and (3) the employee's primary duty must consist of, among others, systems analysis, etc. The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment.

Highly Compensated Employees: Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from 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.

Other FLSA Exempt Employees: The FLSA minimum wage ("MW"), overtime ("OT") and/or child labor ("CL") provisions also do not apply to the following employees: 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; Workers with disabilities - 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; and Youth employed by their parents - CL.

N.Y.S. Law: Under N.Y.S. law, the term “employee” does not include an individual employed in an executive, administrative or professional capacity; outside salesperson; and the following persons: certain taxi drivers; part-time babysitters; certain live-in companions for the elderly or sick; Ministers and members of religious orders; volunteers, learners, apprentices and students working in non-profit institutions; students obtaining vocational experience; and government employees (except for certain non-teaching employees of BOCES).

If you have any questions or need more information concerning your specific wage and hour issues, please call us at (914) 949-2700 or use our email form to get in touch with New York Labor and Employment Attorneys.