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Motivating Employees: HR tips for getting employees motivated and engaged with your company.

When Exempt Workers are Exempt

President Obama's re-election increases the likelihood that new regulations will require employers to maintain written justifications for exempt-nonexempt decisions. Here's some guidance on how much nonexempt work an exempt employee can perform.

Exempt work has to be the primary duty of an exempt employee. How can you make sure exempt employees are fulfilling
this requirement? A useful guide is the percentage of time spent performing exempt work. Employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement.

Time alone is not the sole test. There is no specific requirement that exempt employees spend more than 50 percent of
their time performing exempt work. Employees who do not meet the percentage of time standard for exempt duties could still meet the primary duty requirement if other factors support such a conclusion.

Concurrent Exempt and Non Exempt Work

The concurrent performance of exempt and nonexempt work does not disqualify an employee from being classified as
exempt. The regulations allow concurrent duties because, generally, exempt employees decide for themselves when to perform nonexempt duties. They continue to be responsible for the success of business operations under their management
while performing the nonexempt work.

Nonexempt employees generally follow the directions of a supervisor to perform the nonexempt work or perform the
nonexempt work for defined time periods. For example, an exempt facilities manager will sweep the floor when he or she desires or needs to do so. A nonexempt maintenance employee, on the other hand, will sweep the floor at the order of the facilities manager.

Exempt individuals may, as part of their jobs, perform certain nonexempt work that is "directly and closely related" to the performance of exempt work. In the regulations, this phrase refers to tasks that contribute to or facilitate the performance of exempt work, such as:

  • Physical tasks and/or menial tasks that arise out of exempt duties. This describes, for example, a chemist performing menial tasks such as cleaning out a test tube in the middle of an original experiment. Even though such menial tasks can be assigned to laboratory assistants, the chemist is still an exempt employee.
  • Routine work without which the employee's exempt work cannot be performed. For example, an account manager could spend time on a new order, removing credit reports from the files for analysis, and writing letters to other employers or credit agencies giving credit data and experience.
  • Monitoring and adjusting machinery. For instance, a plant manager in a small factory sets up and calibrates the machines. In a larger plant, a nonexempt employee might undertake this routine work. In a small factory, these duties are directly related to this manager's responsibility for quality control and the performance of subordinates.
  • Taking notes. An example of this is a business consultant who takes and then types up notes from a site visit. Since he will use this information for analysis, he is performing a menial task that is essential for completing the exempt job. Using the computer to create documents or presentations. For example, a district sales manager who creates a PowerPoint® presentation for the annual sales meeting is performing work related to her exempt responsibilities for meeting sales quotas.
  • Using a photocopier or fax machine. An example of this is a teacher who photocopies tests for her students when the office assistant is unavailable. She is performing work directly and closely related to her job of teaching.

Also considered to be exempt work are occasional, infrequently recurring tasks that cannot practicably be performed by nonexempt employees, but are the means for an exempt employee to properly carry out exempt functions and responsibilities. When determining whether task qualify as exempt work, there are several factors to consider, including:

  • Whether the same work is performed by any of the executive's subordinates
  • The practicability of delegating the work to a nonexempt employeeWhether the executive performs the task frequently or occasionally
  • The existence of an industry practice for the executive to perform the task

The Emergency Exception

An exempt employee will not lose the exemption by performing work of a normally nonexempt nature due to an emergency. However, DOL takes the word "emergency" seriously: the situation must be out of the employer's control and must meet at least one of the following criteria:

  • It would threaten the safety of employees, customers, or others in the workplace
  • It would likely cause a cessation of operations, or
  • It could cause serious damage to the employer's property.

In situations like these, work performed to prevent such outcomes is considered exempt work.

For example:

  • A manager does nonexempt work to help out during a fire
  • An exempt employee pitches in during an unexpected rushorder
  • An exempt employee replaces a nonexempt worker during the first day or partial day of an unexpected illness