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