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elaws - employment laws assistance for workers and small businesses

- FLSA Overtime Security Advisor

The information in this Advisor does not yet reflect the Overtime Final Rule that became effective 12/1/2016. DOL's Wage and Hour Division is working on updating the content of this Advisor. Please check back periodically as we hope to have this Advisor updated shortly. If you have questions regarding this Advisor, please contact the Wage and Hour Division or find the office nearest you.

Executive Employees

The focus of the duties tests for the executive exemption is the employee's primary duty. Primary duty means the principal, main, major or most important duty that the employee performs. The determination of an employee's primary duty must be based on all of the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. While time is not the sole test, as a guideline, an employee who spends more than 50 percent of his or her time performing a specific activity can generally be said to have that specific activity as his or her primary duty. If the employee spends less than 50 percent of his or her time performing his or her major or most important duty, the employee may still meet the primary duty requirement if other factors support that conclusion. Please review the definition of primary duty for further guidance regarding this requirement.

Does the employee's primary duty include the performance of office or non-manual work?