Exempt vs. Nonexempt Employees

Understanding the difference between exempt and nonexempt employees.

By Garth Coulson, Feb 8, 2024

Garth is an Editor and Copywriter specializing in SEO and technical writing. He has a background in film with experience in the travel, tech, and fitness industries.

Man talking on the phone while using a laptop.

A nonexempt employee is subject to the U.S. Fair Labor Standards Act (FLSA) rules on overtime and minimum wage. They must be paid minimum wage or higher and must receive “time and a half” or 1.5 times their hourly pay for anything above 40 hours per week.

An exempt employee is any employee who earns above $684.00 per week ($35,568 per year), is paid on a salary basis, and performs exempt job duties set out by the FLSA. Such employees are not subject to overtime and minimum wage rules.

If a nonexempt employee works 45 hours a week and their salary is $10.00 per hour, they would receive $10.00 per hour for their first 40 hours and $15.00 per hour for the last five. Blue-collar workers, police, firefighters, paramedics, and first responders are always considered nonexempt, even if they meet other exempt criteria.

State and Federal Labor Laws:

States have their own labor laws, and an employee who is exempt from federal overtime and minimum wage laws may not be exempt from state laws.

FAQs:

What is the difference between exempt and non exempt?

Nonexempt employees must be paid for each hour of overtime that they work, while exempt employees are exempt from overtime regulations and minimum wage laws in terms of the Fair Labor Standards Act.

What qualifies as an exempt employee?

An exempt employee is not subject to overtime and minimum wage rules set by the FLSA. Exempt employees can legally work for less than the federal minimum wage or work more than 40 hours per week without overtime compensation.

How do I determine if my employees are exempted or not?

For an employee to qualify as exempt they must be paid at least $684.00 per week ($35,568 per year), be paid on a salary basis, and perform exempt job duties including administrative, computer, executive, professional, creative, or outside sales duties.

How can my employees qualify for administrative exemption?

To qualify for the administrative exemption, employees must earn at least $684.00 weekly. Their primary duty must be non-manual office work directly related to management or general business operations for the employer or customers. The employee must use independent judgment for significant decisions.

What are the factors to be considered for computer and tech employees to be exempted?

To qualify for the computer employee exemption, employees must be on a salary or fee basis of at least $684.00 per week. They must work as a computer systems analyst, computer programmer, software engineer, or similarly skilled worker.

Work for exempt computer employees must include:

Application of systems analysis techniques and procedures.
The analysis, creation, design, development, documentation, testing, or modification of computer systems or programs based on and related to user or system design specifications.
The creation, design, documentation, testing, or modification of computer programs related to operating systems.
A combination of the above duties, requiring the same skill level.

How can I determine if my executive employees are qualified for exemption?

To qualify for the executive exemption, employees must earn a salary of at least $684.00 weekly. Their primary duty must be managing the organization or a recognized department. They must direct 2 or more full-time employees, with the ability to hire, fire, and make decisions on employee status.

How can learned professionals be suitable for exemption?

Employees who qualify for the learned professional exemption must be on a salary or fee basis of at least $684.00 weekly. Their primary duty must require advanced knowledge in their field acquired by extensive education and be mostly intellectual in nature. They must exercise discretion and judgment.

What are the factors to be considered for creative professionals to be exempted?

The creative professional exemption allows employers to not pay overtime if the employee is on a salary or fee basis of at least $684.00 per week, and their primary duty requires invention, imagination, originality, or talent in a recognized artistic or creative field.

How can I determine if my outside sales employees are qualified for exemption?

To be considered for the outside sales exemption, an employee’s primary duty must be sales as defined in the FLSA, or getting contracts or orders for services or for the use of facilities. The employee must normally and regularly work away from the employer’s business locations.

How can highly compensated employees be suitable for exemption?

An exempt highly compensated employee must perform office or non-manual work and be paid annual compensation of $107,432 or more with a $684.00 per weekly salary or fee. They must normally and regularly perform at least one of the duties of the exempt administrative, executive, or professional.

Do exempt employees have to pay taxes?

Yes. Exempt status means that employers are exempt from having to pay overtime to the employee. It does not mean that the employee is exempt from taxes in any way.

Do I have to pay overtime to salaried employees?

While salaried employees are most frequently in the exempt category, which means employers don't need to pay overtime, they are not always in it. The FLSA has specific definitions for what types of employees can and cannot receive exempt status.

What is an exempt salary employee?

This means an employer pays a salary but does not have to pay minimum wage or time and a half if the employee works more than 40 hours per week.