The Fair Labor Standards Act (“FLSA”) is one of the key protections for American workers. It sets a price‑floor by means of the minimum wage, and it reduces the hours that Americans are required to work by requiring overtime pay for hours above forty per week. However, when the law was drafted in the 1930s, Congress realized that certain jobs either required extremely long hours or were traditionally compensated in unique ways. For example, sailors generally are on-call or working 24 hours a day when they are at sea, and Congress decided that requiring overtime pay for these employees would threaten an important part of the American economy. For different reasons, Congress exempted “outside” salespeople from the FLSA because such employees spend a lot of time travelling and they are generally paid on a commission basis. According to Congress, it didn’t make sense to require that these employees be paid overtime. Alongside these examples, the drafters of the FLSA included various other exemptions that made sense from an economic standpoint.
However, lobbyists and various special interests have engaged in a prolonged tug-of-war over exemptions to the FLSA. Industry wants more and more jobs to be exempt from overtime, and workers generally want more and more to be covered. The result of this process is anything but rational, and by now FLSA features some truly bizarre exemptions, such as the “maple syrup” process exemption, that look more like a lucky day for a lobbyist than sound policy. Unfortunately, the only way to know if you are exempt or not is to read a list of exemptions, and a long list at that. For your guidance, we have provided the following lists. Please note that these lists are just a starting point. If you answer “yes” to one of the following questions, then that is a red flag that you may be exempted from the FLSA. To get a final answer on whether you are actually exempted from the law, we strongly recommend consulting with an experienced wage-and-hour attorney.
Minimum Wage & Overtime Exemptions:
You may be exempt from both minimum wage and overtime under the FLSA if any of the following apply: (1) your primary job duty is managing and/or supervising other employees; (2) you are an administrative employee (the best example is a human resources employee); (3) you are a teacher; (4) your job requires you to use specialized post-college training (examples include accountants, doctors, lawyers, etc.); (5) your primary job-function is making sales while away from your employer’s place of business; (6) you are employed by an amusement or recreational facility, an organized camp, or a religious or nonprofit educational conference center that is open for less than seven months per year; (7) you are employed in catching fish or processing fish; (8) you are employed in agriculture or you work on a farm; (9) you work for a small town newspaper; (10) you are a switchboard operator for a telephone company; (11) you are a seaman; (12) you are a babysitter or a caretaker for the aged or infirm; (13) you are a criminal investigator who is paid “availability pay”; or (14) you are a computer systems analyst, computer programmer, or software engineer.
Exemptions from Overtime, but Not Minimum Wage
You may be exempt from overtime under the FLSA if any of the following apply: (1) you are a truck driver who drives trucks weighing more than 10,000 pounds; (2) you are employed by a railway; (3) you are employed by an airline; (4) you are employed as an outside buyer of poultry, eggs, cream, or milk; (5) you are employed as an announcer, news editor, or chief engineer by a radio or television station in a town of less than 100,000 people; (6) you are engaged in selling or servicing automobiles, trucks, or farm implements for someone other than the manufacturer; (7) you are engaged in selling trailers, boats, or aircraft for someone other than the manufacturer; (8) you a driver or driver’s helper making local deliveries, who is compensated for such employment on the basis of “trip rates,” or some other delivery payment plan; (9) you are employed in connection with the operation or maintenance of agricultural ditches, canals, reservoirs, or waterways; (10) you are employed at a livestock auctioning facility; (11) you are employed at a “country elevator” with five or fewer employees; (12) you are employed inprocessing of maple sap into sugar or syrup; (13) you are employed in transporting fruits or vegetables or in preparing fruits and vegetables for transport; (14) you are a cab driver; (15) you are a cop or firefighter in a department with less than five employees; (16) you are a domestic servant who resides in the household where you work; (17) you are employed as a surrogate parent; (18) you work at a movie theater; (19) you are employed in an operation involving trees (such felling, tending, planting, surveying, or transporting them) that has eight or less employees; (20) you are an employee of an amusement or recreational establishment located in a National Park or Forest; or (21) you are a commissioned employee of a retail or service establishment.
Although exemptions under the FLSA are anything but predictable, it is critical to know whether one applies before you demand overtime payment or minimum wages. If you decide to consult with an attorney, make sure to bring your employee handbook, job description, paystubs, timecards, and any documents provided to you by your employer. These documents often contain valuable clues to determining whether an exemption applies to you.