Employers who wonder whether they have properly classified their salaried employees as exempt from overtime under the Federal Fair Labor Standards Act (FLSA) would be well advised to consider one simple principle: the higher the employee’s salary, the more likely the employee will be found to be exempt.
The Department of Labor’s (DOL) comments to its FLSA regulations provide: “employees at higher salaries are more likely to satisfy the requirements for exemption as an executive, administrative or professional employee.” DOL investigators have also admitted to me in wage and hour audits that they will closely scrutinize the duties performed by any salaried employee who makes less than $45,000 annually (even though the FLSA’s annual minimum salary is only $23,660).
This makes sense as a practical matter. The DOL assumes that if an employee is being paid a significant salary, the employee is likely performing exempt work, as the company would not pay a high salary for mindless or menial work. Furthermore, the DOL has less concern that an employee who works a lot of hours is being “taken advantage of” if he is compensated well.
Of course, one has to meet the “duties test” of any exemption. But any company concerned about whether its salaried exempt employees are improperly classified should first look at the amounts of salaries paid. The higher the salary, the less scrutiny there will be on whether the employee satisfies a particular exemption’s “duties test.”
Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202