Duties test for exempt status


The Duties Test

The duties test is used to determine whether an employee is exempt or nonexempt. The test is based on the employee’s job duties and whether those duties meet the criteria for exemption. The test has three parts: the job duties test, the salary basis test, and the salary level test.

The “salary basis” test

The “salary basis” test is one of several tests used to determine whether a worker is exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). To be exempt, employees generally must (1) be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed and (2) perform certain duties as described in the regulations.

There are several exceptions to the salary basis test. For example, an employee who is paid on an hourly basis may still be exempt if he or she meets the duties test and is paid at least $455 per week ($23,660 per year). In addition, there are some limited circumstances in which an employee may be deducted from pay for absent days, late arrival, leaving early, or other infractions.

To meet the salary basis test, an employee generally must receive his or her full salary for any week in which he or she performs any work without regard to the number of days or hours worked. However, there are a few employees who may be paid on a “salary basis” even though they are not paid their full salary every week. For example, an employee who teaches swimming lessons three days per week and lifeguard shifts two days per week would still meet the “salary basis” test as long as he or she received his or her full salary for any week in which he or she performed either duty.

The “duties” tests

The “duties” tests are used to determine whether an executive, administrative, or professional employee is exempt from the minimum wage and overtime pay protections of the Fair Labor Standards Act (FLSA).

There are three types of “duties” tests: the “short” test, the “long” test, and the “general” test. To qualify for an exemption under any of the tests, an employee’s job duties must meet all of the applicable requirements in each part of the test.

The “short” test has three parts. To qualify for an exemption under the short test, all three parts must be met:

  1. The employee must be paid a salary of at least $455 per week;
  2. The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; and
  3. The employee must customarily and regularly direct the work of at least two other full-time employees or their equivalent.

The “long” test also has three parts. To qualify for an exemption under the long test, all three parts must be met:

  1. The employee must be paid a salary of at least $455 per week;
  2. The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  3. The employee must customarily and regularly direct the work of at least two other full-time employees or their equivalent; and
  4. The employee must have authority to hire or fire other employees, or his/her suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
    The “Primary Duty” Test
    Courts have held that the “primary duty” of an exempt executive, administrative or professional employee is the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof, and includes work of a highly specialized or technical nature directly related to management or general business operations of the enterprise.
    The “bona fide executive” test

    The “primary duty” test is the most common test used to determine whether an employee is exempt or nonexempt. To meet this test, an employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise. An employee who supervises two or more other employees full time generally satisfies the primary duty requirement.

The “bona fide executive” test has two prongs:

First, the executive must manage the enterprise, or a customarily recognized department or subdivision of the enterprise;

AND second, the executive must customarily and regularly direct the work of at least two other full-time employees or their equivalent.

The “bona fide administrative” test

In order to qualify for the administrative exemption, an employee’s “primary duty” must be the “management of the enterprise in which he [or she] is employed or of a customarily recognized department or subdivision thereof.” In order to meet this test, the employee’s primary duties must include supervising and controlling the work of other employees, and/or exercising discretion and independent judgment with respect to matters of significance.

In order to be considered a bona fide administrative employee, an individual must customarily and regularly exercise discretion and independent judgment. The phrase “discretion and independent judgment” is defined as follows:
The ability to discern, evaluate, and compare data; reach sound conclusions; and communicate opinions on complex matters to superiors. The term does not include menial or routine tasks or duties that can be performed without supervision or without using discretion or independent judgment.

The “primary duty” test for the administrative exemption has two prongs: first, that the employee’s primary duty must be managing the enterprise, or a recognized department or subdivision thereof; and second, that the employee must customarily and regularly exercise discretion and independent judgment with respect to matters of significance.

The “professional” test


To meet the “primary duty” test, an employee’s primary duty must be:

-Performing work that requires advanced knowledge in a field of science or learning;
-Customarily and regularly exercising discretion and judgment;
-Performing work that is original and creative in character in a recognized field of artistic or creative endeavor; or
-Teaching, tutoring, instructing or lecturing in the activity of imparting knowledge.

These positions are typically held by employees who have attained a four-year college degree or higher, although the Donkey Sanctuary case mentioned above indicates that an employee need not have completed a four-year degree to qualify as exempt under this test.

The “Salary Level” Test

In order to meet the “salary level” test, an employee must be paid a salary that is at least equal to the minimum salary set forth by the Department of Labor. The current minimum salary is $455 per week, or $23,660 per year. This salary level is subject to change every three years.

The “standard salary level” test

To qualify for the standard salary level test, an employee must be paid a salary of at least $455 per week. This salary level is subject to change by the USDOL. The current salary level is $455 per week, or $23,660 annually for a full-time employee.

The “highly compensated employee” test


The Department of Labor’s new rule raised the salary level for exempt “highly compensated employees” from $100,000 to $134,004. This means that if an employee earns less than $134,004 per year, they will not be considered highly compensated and the “duties test” will apply to determine whether they are exempt. If an employee earns more than $134,004 per year, they will be considered highly compensated and the “duties test” will not apply.

The “duties test” is a set of criteria that must be met in order for an employee to be exempt from overtime pay. The criteria vary depending on whether the employee is classified as executive, administrative, professional, or outside sales.


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