(NOTE: The U.S. District Court for the Eastern District of Texas issued a preliminary injunction preventing the implementation of the revised FLSA overtime regulations. The case was brought by 21 states. The Obama Administration appealed the decision to the U.S. Court of Appeals for the Fifth Circuit. The 5th Circuit Court of Appeals granted a motion of the Trump Administration for an additional 60 days to determine its position on the appeal of the ruling by the District Court enjoining the FLSA overtime regulation. The Administration's decision was initially due by May 1st, 2017. The 5th Circuit granted another extension until June 30th. The Labor Department filed a brief with the Fifth Circuit Court of Appeals indicating that it will not defend the $913 salary rate and asked the Court to clarify its ability to set a salary level. The department has also issued a request for public comments. Until we hear more, continue to comply with the old salary level testing regulations.)
Employees who meet the five criteria below are bona fide executive employees under DOL’s revised exemption regulations. If any of the questions below are answered in the negative, the employee is not exempt as an executive employee unless he or she is highly compensated.
- Is the employee paid a minimum of $455 per week exclusive of board, lodging or other facilities? Effective December 1, 2016 the minimum salary level will be $913 per week exclusive of board, lodging or other facilities.
- Is the employee paid on a salary basis? With certain limited exceptions, he or she must:
- Experience no reduction in salary for variations in the quality and quantity of work
- Experience no deductions for partial-day absences
- Receives each pay period a pre-determined amount constituting all or part of his or her compensation
- Pay deductions are based on the principle of public accountability 29 C.F.R. § 541.602
- Does the employee’s “primary duty” consist of managing the enterprise or a customarily recognized department or subdivision thereof?
- The primary duty means the principle, main, major or most important duty that the employee performs
- The primary duty must be managing a customarily recognized department or subdivision, not a mere collection of employees assigned from time to time to a specific job or series of jobs. 29 C.F.R. § 541.100
- Does the employee regularly and customarily supervise two or more employees?
- The employee must supervise two full-time employees or the equivalent (for example, one full-time and two half-time employees)
- Employees supervised must be employed in the department that the “executive” is managing
- A shared responsibility for the supervision of the same two (or more) employees in the same department does not fulfill the requirement; however, a single department can have more than one& manager if there is a ratio in the department of at least two full-time equivalents to each manager. 29 C.F.R. § 541.104.
- Does the employee have the authority to hire or fire other employees, or are the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any change of status of other employees given particular weight?
- To determine whether an employee’s suggestions and recommendations are given “particular weight,” factors to consider include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. 29 C.F.R. § 541.105.