Fair Labor Standards Act Advisor

Exemptions

Some employees are exempt from the overtime pay provisions, some from both the minimum wage and overtime pay provisions and some from the child labor provisions of the Fair Labor Standards Act (FLSA). Exemptions are narrowly construed against the employer asserting them. Consequently, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee's actual duties before assuming that the exemption might apply to the employee. The ultimate burden of supporting the actual application of an exemption rests on the employer.

Exemptions are typically applied on an individual workweek basis. Employees performing exempt and non-exempt duties in the same workweek are normally not exempt in that workweek.

Following is a list of some of the more commonly used exemptions. This list is not intended to be all-inclusive. By clicking on the underlined text below, you will be linked to information on the exemption. Other, less commonly used FLSA exemptions, are listed after this section.

Commonly Used Exemptions

Commissioned sales employees of retail or service establishments are exempt from overtime if more than half of the employee's earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked. You may also wish to review the applicable regulation.

Computer professionals: Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA.

Drivers, driver's helpers, loaders and mechanics are exempt from the overtime pay provisions of the FLSA if employed by a motor carrier, and if the employee's duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce. You may also wish to review the applicable regulation.

Farmworkers employed on small farms are exempt from both the minimum wage and overtime pay provisions of the FLSA. You may also wish to review the specific regulation. Young workers employed on small farms, with parental consent, are also exempt from the child labor provisions of the FLSA. For more information on exemptions from the child labor provisions of the FLSA in agriculture, click the underlined text. Other farmworkers are exempt from the FLSA's overtime provisions. You may also wish to review the specific regulation.

Salesmen, partsmen and mechanics employed by automobile dealerships are exempt from the overtime pay provisions of the FLSA. You may also wish to review the applicable regulation.

Seasonal and recreational establishments: Employees employed by certain seasonal and recreational establishments are exempt from both the minimum wage and overtime pay provisions of the FLSA. You may also wish to review the applicable regulation.

Executive, administrative, professional and outside sales employees: (as defined in Department of Labor regulations) and who are paid on a salary basis are exempt from both the minimum wage and overtime provisions of the FLSA.

Other FLSA Exemptions

(MW = minimum wage OT = overtime CL = child labor)

• Aircraft salespeople - OT
• Airline employees - OT
• Amusement/recreational employees in national parks/forests/Wildlife Refuge System - OT
• Babysitters on a casual basis - MW & OT
• Boat salespeople - OT
• Buyers of agricultural products - OT
• Companions for the elderly - MW & OT
• Country elevator workers (rural) - OT
• Workers with disabilities - MW
• Domestic employees who live-in - OT
• Farm implement salespeople - OT
• Federal criminal investigators - MW & OT
• Firefighters working in small (less than 5 firefighters) public fire departments - OT
• Fishing - MW & OT
• Forestry employees of small (less than 9 employees) firms - OT
• Fruit & vegetable transportation employees - OT
• Homeworkers making wreaths - MW, OT & CL
• Houseparents in non-profit educational institutions- OT
• Livestock auction workers - OT
• Local delivery drivers and driver's helpers - OT
• Lumber operations employees of small (less than 9 employees) firms - OT
• Motion picture theater employees - OT
• Newspaper delivery - MW, OT & CL
• Newspaper employees of limited circulation newspapers - MW & OT
• Police officers working in small (less than 5 officers) public police departments - OT
• Radio station employees in small markets - OT
• Railroad employees - OT
• Seamen on American vessels - OT
• Seamen on other than American vessels - MW & OT
• Sugar processing employees - OT
• Switchboard operators - MW & OT
• Taxicab drivers - OT
• Television station employees in small markets - OT
• Truck and trailer salespeople - OT
• Youth employed as actors or performers - CL
• Youth employed by their parents - CL

Note: For information about the application of these exemptions, contact your local Wage and Hour District Office.

Continue