Exempt Or Non-exempt? That Is The Question!

This question is one frequently posed by employees uncertain if their employers are dealing fairly with them in terms of their job classifications and their possible right to overtime pay.  While the question is very common, it does not mean the answer will be simple.  It may be advisable to seek the counsel of an employment attorney if you feel that your position/job should be non-exempt, but you are classified as exempt. 
The FLSA (Federal Labor Standards Act) provides three classifications of exemptions in its regulations.  They are Exempt Administrative, Exempt Professional, and Exempt Executive.  Each classification has five to six criteria which guides if there would be an exemption met.  All the criteria must be met simultaneously.  Any failure of an employee to meet even one of the criteria in the list means that he/she is not exempt from the provisions of the law.  Oftentimes employers will try to attach a job title to a position in hopes that it will “make it appear exempt”.  Again, a qualified employment attorney can quickly assess the FLSA criteria as they relate to your position’s duties and determine if you are properly classified.
 
All three classifications share one common provision and that is the criteria for wage requirement.  Any employee classified as exempt must make at least $455 per week.  Note that this requirement has been increased considerably for the state of California. 
Below are abbreviated versions of the criteria for each exemption. 
 Exempt Administrative Employee –
  Performance of office or non-manual work directly related to management policies or general business operations of employer or employer's customers.
Customarily and regularly exercises discretion and independent judgment.
  Performs under only general supervision.
  Work performed is specialized or technical requiring specialized training, knowledge or experience.
  Completes special assignments and tasks under only general supervision.
 Exempt Professional Employee –
  Primary work requires knowledge of an advanced type in a field of science or learning normally acquired through an extended course of intellectual instruction and study, as distinguished from a general academic education and from training in the performance of routine mental, manual or physical processes.
  Work that is original and creative in character in a recognized field.
  Work requires discretion or judgment in its performance; and work which is predominantly intellectual and varied in character and is of such character that the output produced cannot be standardized in relation to a given period of time
   Does not devote more than 20% of his time to nonexempt activities.
 Exempt Executive Employee -
  Primary duty consists of managing an enterprise or a customarily recognized department or division by which he/she is employed.
  Customarily and regularly directs the work (i.e. supervises) two or more employees.
  Has authority to hire and fire other employees, or his/her word in such decisions is given weight; and customarily and routinely exercises discretionary powers.
Does not devote more than 20% of hours to work described in areas above.
 If you feel that deciphering the FLSA guidelines as you dissect your various job duties is a bit overwhelming, it may be time to seek the legal advice of an employment attorney in your area.  Unfortunately, employer abuses of the exempt, non-exempt guidelines are common.  This may be unintentional and a function of your employer not being informed on the Wage and Hour Laws.  It also may be intentional and intended to save costs and thus maximize profits by not rightfully paying overtime to employees.  The reason is irrelevant.  If you are classified incorrectly as exempt, you would have a back wage claim related to overtime hours you have worked, and not been duly compensated for.  Providing a job description to your employment attorney is extremely helpful in assessing your exemption classification.