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May 11, 2010
Exempt vs Non-Exempt Duties for Three FLSA Exemptions

In a BLR webinar titled "Reducing Overtime Costs: What You Legally Can—and Can't—Do to Keep Workers at Their Straight-Time Rates," Laura P. Worsinger, Esq., outlined exempt and non-exempt duties for the executive, administrative, and professional exemptions under the Fair Labor Standards Act (FLSA).

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Executive Exemption

Exempt duties include:

  • Interviewing, selecting, and training employees;
  • Setting and adjusting pay rates and work hours or recommending same;
  • Directing the work of or supervising two or more employees;
  • Keeping production records;
  • Evaluating and disciplining employees; must have actual authority to hire, fire or make recommendations that are given "particular weight"; and
  • Planning, determining and distributing work.

Non-exempt duties are as follows:

  • Performing same kind of work as subordinates;
  • Performing any kind of production work;
  • Performing routine clerical duties, such as bookkeeping, cashiering, billing, filing or operating business machines;
  • Performing maintenance work; and
  • Performing work involving repetitive operations with their hands using physical skill and energy.

Administrative Exemption

Worsinger identified the following exempt duties under the administrative exemption:

  • Advising management;
  • Planning, negotiating, and representing the company;
  • Purchasing and promoting sales;
  • Doing business research, analyzing data, and determining policies; and
  • Human Resources

Administrative duties that are considered non-exempt duties include:

  • Routine clerical duties;
  • Operating equipment;
  • Inspecting products;
  • Tabulating data; and
  • Performing work involving repetitive operations with their hands using physical skill and energy.

Professional Exemption

Examples of exempt duties under the professional exemption include:

  • A licensed lawyer or CPA doing legal or financial work; and
  • A designer performing creative work requiring independent judgment and discretion.

Non-exempt duties are:

  • Bookkeeping or financial planning by an unlicensed person;
  • Duplicating or re-drawing designs or patterns (when performed by an assistant); and
  • Performing work involving repetitive operations with their hands using physical skill and energy.

Note: Worsinger said it is absolutely permissible for an exempt employee to perform non-exempt duties, so long as these tasks do not predominate. Indeed, probably every exempt employee, no matter high up in the management chain, performs some non-exempt duties.

Laura P. Worsinger, Esq. is Of Counsel with the Los Angeles office of Dykema Gossett PLLC. She has broad counseling and litigation experience and specializes in the defense of employers in individual and class actions involving wage and hour violations, misclassification, discrimination, wrongful termination, and other employment-related proceedings. She can be contacted at lworsinger@dykema.com.

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