Reviewed Date: 09/23/2021
To qualify for exemption under the regulations, the employee also must meet the “duty test.” To qualify, an employee’s “primary duty” must be the performance of exempt work. The term “primary duty” means:
… the principle, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of non-exempt work performed by the employee. 29 C.F.R. § 541.700(a).
The amount of time spent performing exempt work can help determine whether exempt work is the primary duty of an employee. “Employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirements if the other factors support such a conclusion.” 29 C.F.R. § 700(b).
Work that is “directly and closely related” to the performance of exempt work also is considered exempt work. “The phrase ‘directly and closely related’ means tasks that are related to exempt duties and that contribute to or facilitate performance. ‘Direct and closely related’ work may include physical and/or menial tasks that arise out of exempt duties, and the routine work without which the exempt employee’s work cannot be performed properly (e.g., record keeping, monitoring and adjusting machinery; taking notes; using the computer to create documents or presentations; opening the mail for the purpose of reading it and making decisions; and using a photocopier or fax machine). Work is not 'directly and closely related' if the work is remotely related or completely unrelated to exempt duties.” 29 C.F.R. § 541.703(a).
The use of manuals, guidelines or other established procedures containing or relating to highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills does not preclude exemption under section 13(a)(1) of the Act or the regulations in this part. Such manuals and procedures provide guidance in addressing difficult or novel circumstances and thus use of such reference material would not affect an employee's exempt status. The section 13(a)(1) exemptions are not available, however, for employees who simply apply well-established techniques or procedures described in manuals or other sources within closely prescribed limits to determine the correct response to an inquiry or set of circumstances. 29 C.F.R. § 541.704.