What are "exempt" and "non-exempt" employees?
The most frequent question asked in the area of overtime compensation is: "Am I entitled to overtime?" Both Federal and California law require that most employees receive overtime compensation for hours worked over 40 hours a week or 8 hours a day. "Non-exempt" employees are those who are covered by these rules and should receive the minimum wage and overtime pay. Those employees who are considered "exempt" from the overtime rules do not receive additional compensation for hours worked in excess of 40 hours a week or 8 hours a day.
How do I know if I am an "exempt" employee?
The exemptions are based on job duties and certain pay requirements. The exemptions are complicated, and you should consult an attorney if you are unsure whether you are properly classified as an exempt employee. The information below is meant only as a basic overview and is not intended to provide legal advice.
The most commonly applied exemptions are referred to as the "white collar" exemptions. These exemptions include employees who work in "Executive," "Administrative," or "Professional" jobs. To satisfy the requirements of these three exemptions, an employee must receive a fixed salary of at least $455 per week, and an employee's job duties must meet certain criteria. The requirements of these three exemptions, are described below.
To fall under the executive exemption, an employee's primary job must be to manage an employer's business or a subdivision or department of the business. The employee must also regularly supervise two or more employees and must have authority-or at least significant input in the hiring, firing, and/or promotion of other employees.
The administrative exemption requires that an employee be primarily engaged in office work directly related to the management or general operations of the employer or the employer's customers. An administrative employee's job must be “administering” the employer's or the employer's customers' businesses, as opposed to producing the goods or services from which the businesses ultimately generate revenue. The Administrative exemption also requires that the employee's job involve "the regular exercise of independent discretion and judgment with respect to matters of significance."
The professional exemption includes two subcategories of employees: "Learned Professionals" and "Creative Professionals." The Learned Professional exemption requires that the employee perform work requiring advanced knowledge-usually acquired through extended training or study-in a field of science or learning. Generally, this exemption applies to workers who have obtained degrees or received specialized training, such as doctors, lawyers, teachers, accountants, etc. The Creative Professional exemption requires that the employee's primary job involve creativity, imagination, or artistic talent applied in a recognized field of "artistic or creative endeavor." This exemption may apply to musicians, actors, writers, etc.
What is the outside sales exemption?
Both California and Federal law also exempt employees who work in sales. "Outside sales" employees are those whose primary job duty is sales and who regularly work away from their employer's place of business. The employees must be outside the office performing sales work more than 50% of the time.
What is the computer professional exemption?
Certain employees who work with computers may also be exempt from the overtime requirements. Such employees must be paid at least $41 per hour or they can be paid a salary per week. Additionally, exempt computer employees must be engaged in systems analysis, software design, or some combination of these duties to be exempt. If you work with computers and you simply install, support, or maintain computer hardware and software, you may not be exempt. Also, if your primary function is to train others regarding the usage of computer software or hardware, you also may not be exempt.