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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 17217
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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Can you give me a simple definition on how non exempt and exempt

This answer was rated:

Can you give me a simple definition on how non exempt and exempt employment is determine by law?

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is a common issue,

wallstreetfighter :

Under the law,

wallstreetfighter :

A job title or classification alone is not enough to make an employee exempt. Further, the fact that an employee is salaried instead of paid based on an hourly wage is also not enough to automatically classify the employee as exempt, although this is a common misconception. Instead, when determining how a worker should be classified, the FLSA indicates that employers should consider the actual circumstances surrounding the employment and the job duties performed.

Customer:

yes, under the law

Customer:

just wanting to have a better understanding on this topic

wallstreetfighter :

There are three main types of exempt employees. To fall under the executive exemption, for instance, the employee must be paid a salary instead of an hourly wage. The employee must also be vested with the primary duty of managing either the business enterprise or a subdivision or department thereof. The executive must regularly and customarily control or direct at least two other employees. He or she must also have authority to hire, fire or promote employees, or have a great deal of input into the hiring, firing, and promotion of workers.

wallstreetfighter :

The main requirements you should know is that only salary employees, performing high level work can be considered exempt from overtime,

wallstreetfighter :

Managers, Supervisors, Executives, and Professionals who are paid a set salary would be typically exempt employees,

Customer:

How is this example figure, you are the manager and over see over 8 employees in an hour, as you phase them out they are all gone and now I'm working their job. How is this figure?

wallstreetfighter :

it will depend on your duties,

wallstreetfighter :

if your primary duties are still as a manager, you would be exempt,

Customer:

how is that figure?

wallstreetfighter :

if you are now doing non managerial duties, and are performing duties an hourly non exempt employee would do,

wallstreetfighter :

you would then be non exempt

Customer:

I do all the managerial duties, plus do both for over 50% of the time. How would this be determine?

wallstreetfighter :

to qualify as an exempt executive under the standard test for the executive exemption, an employee must have as his or her primary duty the management of the enterprise in which the employee is employed or of a customarily recognized

wallstreetfighter :

The regulations (29 C.F.R. §541.700(a)) define "primary duty" as "the principal, main, major or most important duty that the employee performs." The rules continue that "[d]etermination 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."


According to the rules, factors to consider when determining an employee's primary duty 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 nonexempt work performed by the employee.


 


An employee whose primary duty is nonexempt will be nonexempt even if he also performs significant exempt duties. By the same token, an employee whose primary duty is exempt will be exempt under the FLSA even if she also performs significant nonexempt duties. (Note, however, that this may not be true in some states, which require an exempt employee to devote 80 percent of his or her time to exempt duties.)


FLSA regulations (29 C.F.R. §541.700(b)) state that the amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee, but it is not conclusive. Employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement under the FLSA. However, the regulations state expressly that nothing in the rules requires that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement of an exemption if other factors support such a conclusion.

wallstreetfighter :

The law is clear,

wallstreetfighter :

you have to determine how many hours you work the non manager duties,

Customer:

So as long as you are still in charge of managerial duties plus doing doing the duties you over see doesn't count as non exempt because I'm still the manager on duty. Is this correct?

wallstreetfighter :

If you spend the majority of your time as a manager, you would be exempt,

wallstreetfighter :

If the majority of your duties are not as a manager, you should be paid overtime

Customer:

I do all the managerial duties by 3 hours then I'm doing the work (we would also paid someone to do as an hourly employee during certain times) and the rest of the 7.5 hours is doing this work. This would be non-exempt?

wallstreetfighter :

if you spend 7.5 hours working in a non manager position and only 3 hours as a manager, you have a strong case your primary duties are not as a manager and should be non exempt

Customer:

Well, I getting paid 80% as other employees doing my work according to a internet site

Customer:

We are being ask to do cut even more now

Customer:

I'm just want to know some of my rights if they decide to terminate my job

Customer:

As I understand the law in a right to work state they can just let me go for just about anything

Customer:

But if this happen I want to get unemployment until I can find another job

Customer:

What could I tell them about this practice of having me work over 50% of the time to force them not to block me getting unemployment?

wallstreetfighter :

they can terminate you for any reason,

wallstreetfighter :

however you can file a wage complaint,

Customer:

Well, what even they make up really

Customer:

how would you go about filing a wage complaint?

wallstreetfighter :

for the unpaid overtime, you can file a state wage claim now as well

wallstreetfighter :

You can file the wage complaint with the State labor board above,

wallstreetfighter :

this would be for overtime,

Customer:

well, this company did let go my assistant last Jan. and they paid his for 14 weeks, plus let him file for unemployment. But you never know what they will do this time.

wallstreetfighter :

yes,

wallstreetfighter :

if you feel they may be trying to terminate you, consider filing the wage complaint,

wallstreetfighter :

and they may offer you a nice severance to avoid the labor issues

Customer:

We have not gotten any better for the most part, I'm just trying to be prepare if they decide to let me go. It sad, I've work for this company for over 30 years now.

Customer:

is there any other advise or topic I can study some

wallstreetfighter :

that is unfortunate,

wallstreetfighter :

you may want to hire a local attorney to send them a letter advising them you may file a labor complaint for the unpaid overtime, and see if the try to work out a settlement with you

Customer:

thank you

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