Exempt vs Non-Exempt Employees - Overtime Rules

Department of Labor Regulations for Overtime for All Employees

Overtime Rules for Exempt and Non-exempt Employees
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The Department of Labor (DOL) sets rules for when employers must pay overtime to employees. The DOL assumes every work must receive overtime if they work over 40 hours in a week, at a rate equal to one and a half times their hourly rate (at a minimum). But some employees, because of the nature of their work, are considered to be "exempt" from overtime. 

It used to be that the terms "exempt" and "non-exempt" were clearly defined. But the DOL has more rules to protect lower-paid exempt employees from falling below the minimum wage, by requiring that they must be paid overtime. 

The Department of Labor has issued proposed changes (March 2019) to increase the number of employees entitled to overtime in 2020. Before you decide whether you need to pay overtime to a salaried employee, check with the Department of Labor.

What Makes an Employee Exempt or Non-Exempt? Exempt from What?

The terms "exempt" and "non-exempt" refer to job classifications of employees and the exemption of certain job classifications from overtime pay and minimum wage requirements. The Fair Labor Standards Act, administered by the Wage and Hour Division of the U.S. Department of Labor, requires that all U.S. employees be paid at least minimum wage and receive overtime a 1 and a half the hourly rate for work performed in excess of 40 hours during a work week. Employees who have certain types of jobs and who are paid a certain minimum salary are considered exempt from receiving overtime.


What Types of Employees Are Exempt? 

The Fair Labor Standards Act (FLSA) states that employees employed as "bona fide executive, administrative, professional and outside sales employees" and "certain computer employees" may be considered exempt from both minimum wage and overtime pay. These are sometimes called "white collar" exemptions. 

Being exempt from overtime includes:

  • Being paid a salary AND
  • Being in a "white collar" position, AND
  • Being paid more than the minimum weekly salary, as explained below. 

The DOL also has specific types of employees who are considered to be exempt from both minimum wage requirements and overtime requirements and other types of employees who are exempt from overtime requirements only.

When Must Exempt Employees Receive Overtime? 

Under regulations already in place through the Department of Labor, employees whose salary is equal to or less than a minimum weekly salary of $455 a week ($23,660 annually) must receive overtime, even if they are classified as exempt. This requirement doesn't apply to outside sales employees, teachers, and employees practicing law or medicine.  Exempt computer employees may be paid at least $455* on a salary basis or on an hourly basis at a rate not less than $27.63 an hour.

The proposed change for 2020 would mean that pay $679 a week ($35,308 a year) or more would not be subject to overtime. This is only a proposed change by the Department of Labor. Check with the Department of Labor if you have questions about paying overtime to salaried employees.

Exempt employees must be paid for any week in which they do any work; they don't have to be paid for a week in which they didn't work.

Can I Use Comp Time Instead? 

 Many employers pay employees "comp time" or compensatory time off, for extra time worked or travel time. For example, if an employee must work a trade show over the weekend, the employer would give time off instead of paying overtime. But the DOL says that private (non-government) employers cannot use compensatory time off to avoid having to pay overtime. 

Can I Use Bonuses or Catch-up Payments to Get an Exempt Employee Above the Minimum? 

You can use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary requirement. To qualify as non-discretionary, the bonuses must be tied to some measure like productivity or sales or profitability. The bonuses must also be paid at least quarterly, not just at the end of the year. You can also make catch-up payments toward the previous quarter's salary. 

Do I Need to Track Time for Exempt Employees? 

No, you won't have to set up time clocks for your executives, but you will have to keep records to make sure these employees are making more than the minimum. You can choose how to keep those records as long as they meet FLSA requirements. 

The regulations don't require that exempt employees work a specific schedule every week, and it doesn't prohibit them from working from home. Here's how the DOL suggestsyou do this: 

The employer must keep an accurate record of the number of daily hours worked by the employee. By the end of each pay period, the employee provides her employer with the total number of hours she worked each day, including the number of her overtime hours.

How Does This Regulation Affect Non-exempt Employees?

It has little effect on non-exempt (hourly) employees ​because they are already paid overtime if they work at least 40 hours per week. 

Does this Regulation Apply to Small Businesses? 

While the regulation specifically discusses larger businesses that are required to abide by the regulations, all businesses engaged in "interstate commerce" are under this regulation. Unless you can prove that you do business only within your state (and that includes buying from vendors and banking relationships), it's almost impossible to prove that these regulations don't apply to your business.