The FLSA exempts broad categories of “white-collar” jobs
from minimum wage and overtime requirements if they meet certain tests
regarding job duties and responsibilities and are paid a certain minimum
salary. These categories include executives, administrative employees,
professional employees, outside and certain retail sales personnel,
and highly compensated individuals.
Please see the
national Exempt Personnel
Employers should periodically review the classification
of exempt employees to ensure that they still qualify for exempt status,
especially if the company has undergone restructuring or downsizing.
Motor Carrier Act (MCA) exemption. Under the MCA exemption to the FLSA, the overtime provisions of
the FLSA do not apply to motor carriers, such as truck drivers and
their helpers, operating in interstate commerce. The exemption is
not limited to those who ship large amounts of property or ship property
as their principal business. A U.S. appellate court has held that
the exemption extends to field engineers who carry tools, parts, and
equipment in their private cars on interstate trips to install, maintain,
and repair computers (Friedrich v. CableData, 974 F.2d 409 (CA-3,
1992)). However, such personnel are still covered by the equal pay,
minimum wage, and recordkeeping requirements of the FLSA.
The FLSA provides for a number of miscellaneous exemptions
from either the minimum wage or overtime requirements or from both.
Minimum wage and overtime exemptions. Among the occupations exempt from both the FLSA minimum wage and
overtime provisions are:
• Employees of certain seasonal amusement or recreational
• Employees in fishing operations and in initial processing
• Agricultural workers employed by employers using less
than 500 man-days in any quarter of the previous year
• Agricultural workers who are members of the employer's
• Locally based hand harvest workers traditionally paid
a piece rate who worked less than 13 weeks in agriculture during the
preceding calendar year
• Certain local seasonal harvesters under the age of 17
• Employees who principally work in the range production
• Seafarers on foreign vessels
• Newspaper carriers who deliver to consumers
• Persons employed outside the United States for the entire
• Employees of gas stations with annual sales of less than
Overtime exemptions. Among the
occupations exempt from overtime requirements are:
• Employees of interstate motor carriers, airlines, and
• Outside buyers of poultry and dairy products
• Any employee employed as a seaman
• Motor vehicle sales and service personnel
• Trailer, boat, or aircraft salespersons not working for
• Certain drivers and helpers on local delivery
• Agricultural employees, including employees working for
nonprofit or cooperative agricultural water storage or suppliers
• Employees engaged in the initial transportation of fruits
and vegetables from a farm
• Taxi drivers
• Employees of police and fire departments with fewer than
• Movie theater employees
Partial overtime exemptions. A
few categories of workers have partial exemptions from the FLSA overtime
requirements. These include:
• Certain employees of amusement and recreational establishments
located in national parks and similar facilities if paid overtime
for hours after 56 hours in a workweek
• Bulk or wholesale petroleum distributors if paid overtime
for hours after 56 hours in a workweek
• Employees receiving literacy training for 10 hours per
• Hospital and nursing home employees if paid overtime
after 8 hours per day or 80 hours during 2-week periods
The FLSA states that it is a violation for any person
to discharge or in any other manner discriminate against any employee
because the employee has filed any complaint or instituted or caused
to be instituted any proceeding under the FLSA, has testified or is
about to testify in any such proceeding, or has served or is about
to serve on an industry committee.
Employees are protected regardless of whether the complaint
is made orally or in writing. Complaints made to the Wage and Hour
Division are protected, and most courts have ruled that internal complaints
to an employer are also protected.
Because the law prohibits any person from retaliating
against any employee, the protection applies to all employees
of an employer even if the employee’s work and the employer are not
covered by the FLSA. The law also applies in situations where there
is no current employment relationship between the parties; for example,
it protects an employee from retaliation by a former employer.
Any employee who is discharged or in any other manner
discriminated against may file a retaliation complaint with the Wage
and Hour Division or may file a suit seeking remedies, including,
but not limited to, employment, reinstatement, lost wages, and an
additional equal amount as liquidated damages.
Internships in the for-profit, private sector will most
often be viewed as employment by the DOL, unless the test described
below is met. Interns who qualify as employees rather than trainees,
typically must be paid at least the minimum wage and overtime compensation
for hours worked over 40 in a workweek. According to the DOL, if all
of the following six factors are met, an employment relationship does not exist between an intern and the company that sponsors the
• The internship, even though it includes actual operation
of the facilities of the employer, is similar to training that would
be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works
under close supervision of existing staff;
• The employer that provides the training derives no immediate
advantage from the activities of the intern, and on occasion its operations
may actually be impeded;
• The intern is not necessarily entitled to a job at the
conclusion of the internship; and
• The employer and the intern understand that the intern
is not entitled to wages for the time spent in the internship.
If no employment relationship exists, the participants
are not subject to the FLSA.
In general, the more an internship program is structured
around a classroom or academic experience as opposed to the employer’s
actual operations, the more likely the internship will be viewed as
an extension of the individual’s educational experience (this often
occurs where a college or university exercises oversight over the
internship program and provides educational credit). The more the
internship provides the individual with skills that can be used in
multiple employment settings, as opposed to skills particular to one
employer’s operation, the more likely the intern would be viewed as
receiving training. Under these circumstances, the intern does not
perform the routine work of the business on a regular and recurring
basis, and the business is not dependent on the work of the intern.
On the other hand, if the interns are engaged in the
operations of the employer or are performing productive work (for
example, filing, performing other clerical work, or assisting customers),
even though they may receive some benefits in the form of a new skill
or improved work habits, an employment relationship may still exist
because the employer also benefits from the interns’ work.
If an employer uses interns as substitutes for regular
workers or to augment its existing workforce during specific periods,
these interns must be paid at least the minimum wage and overtime.
If the employer would have hired additional employees or required
existing staff to work additional hours had the interns not performed
the work, the interns will be viewed as employees. Conversely, if
the employer is providing job shadowing opportunities that allow an
intern to learn certain functions under the close and constant supervision
of regular employees and the intern performs no or minimal work, the
activity is more likely to be viewed as a bona fide educational experience.
If the intern receives the same level of supervision as the employer’s
regular workforce, this would suggest an employment relationship,
rather than training.
An unpaid internship should be of a fixed duration, established
before the outset of the internship. Further, unpaid internships generally
should not be used by the employer as a trial period for individuals
seeking employment at the conclusion of the internship period. If
an intern is placed with the employer for a trial period with the
expectation that he or she will then be hired on a permanent basis,
that individual generally would be considered an employee under the
Nonprofit organizations are not automatically exempt
from the FLSA. There are basically two types of nonprofits. First
are nonprofits that engage solely in charitable activities and do
not engage in commerce. These nonprofit organizations would be exempt
from the FLSA. Second are nonprofits that have a charitable purpose
but do engage in commerce whether to reach their ultimate goal of
charity or to entertain their target audience. These nonprofits are
Religious institutions are not automatically exempt from
the FLSA. Many religious organizations do operate businesses. The
FLSA does cover the ordinary commercial activities of religious organizations.
If a religious organization runs a hospital, school, or residential
care institution, it will be covered by the FLSA. Enterprise coverage,
however, is not applicable to employees who are engaged exclusively
in the operation of a religious organization, because their activities
are not performed for a business purpose.
DOL's Field Operations Handbook states that there is
no provision in the FLSA that prohibits an employer-employee relationship
between a religious, charitable, or nonprofit organization and people
who perform work for the organization. For example, a church or religious
institution may operate an establishment to print books and employ
a regular staff who do this work as a means of livelihood. In such
cases, an employer-employee relationship would exist under the FLSA.
The Handbook also states that "persons such as nuns,
monks, priests, lay brothers, ministers, deacons, and other members
of religious orders who serve pursuant to their religious obligations
in the schools, hospitals, and other institutions operated by their
church or religious order shall not be considered to be ‘employees.’"
However, the Handbook also states that the fact that such a person
is a member of a religious order does not automatically preclude an
employer-employee relationship. This rule is rather ambiguous, and
an employer should consider consulting an attorney to determine whether
an employer-employee relationship exists in this situation.
State and local government employers, defined as public
agencies by the FLSA, are covered by the Act. "Public agencies" are
the federal government, the government of a state or political subdivision
of a state, any state or federal agency, or any interstate governmental
agency. The public agency definition does not extend to private companies
that are engaged in work activities normally performed by public employees.
Certain employees of a public agency who, solely at their
own option, occasionally or sporadically work on a part-time basis
for the same public agency in a capacity other than the one in which
they are primarily employed may be exempt from the overtime requirements
of the FLSA.
Police. Public law enforcement
personnel are covered by the FLSA. Law enforcement personnel are employees
who are empowered by state or local ordinance to enforce laws designed
to maintain peace and order, protect life and property, and to prevent
and detect crimes; who have the power to arrest; and who have undergone
training in law enforcement.
Firefighters. Public firefighters
are covered by the FLSA. Fire protection personnel employed by a fire
department include firefighters, paramedics, emergency medical technicians,
rescue workers, ambulance personnel, or hazardous materials workers
• Trained in fire suppression,
• Have the legal authority and responsibility to engage
in fire suppression, and
• Are engaged in the prevention, control and extinguishment
of fires or response to emergency situations where life, property,
or the environment is at risk.
The FLSA provides that employees engaged in fire protection
or law enforcement may be paid overtime on a work period basis. A
"work period" may be from 7 to 28 consecutive days. For example, fire
protection personnel are due overtime under such a plan after 212
hours worked during a 28-day period, while law enforcement personnel
must receive overtime after 171 hours worked during a 28-day period.
For work periods of at least 7 but fewer than 28 days, overtime pay
is required when the number of hours worked exceeds the number of
hours that bears the same relationship to 212 (fire) or 171 (police)
as the number of days in the work period compares to 28.
Exception. The FLSA provides an
overtime exemption to law enforcement or fire protection employees
of a public agency that employs fewer than five employees in law enforcement
or fire protection activities.