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California Employment Lawyers > Blog > Employment > Who Is-And Isn’t Protected By The FLSA?

Who Is-And Isn’t Protected By The FLSA?


The Fair Labor Standards Act (FLSA) is a powerful law that requires employees be paid for their time. Additionally, should those workers work more than 40 hours per week, employees must be paid the federally required overtime payment rate. The employee can sue for recovery of back owed wages, as well as penalties, if employers don’t pay according to what the FLSA requires.

But the FLSA doesn’t apply to all employees. There are a number of exemptions, and the first thing that an employer says when sued under the FLSA, is that the employee was exempt. If you are exempt, you cannot sue under the FLSA to collect back owed wages. But who is exempt?

Salary Requirements

Any employee who is paid more than $23,600 per year, or $455 per week, and who is considered a salaried employee, is exempt and cannot sue under the FLSA.

It can often be difficult to determine whether an employee is considered hourly or salaried. Employees that get a “guaranteed” set salary, or a salary regardless of how much or little work that they perform in any one given week, and who are paid the same thing regardless of the quality of their work in any given week will generally be considered salaried and thus exempt.

It doesn’t matter if you can have pay reduced for days off of work; you can still be considered salaried even if that is the case.

Your Job Title and Duties

But to be exempt, the employee also must have managerial or supervisory positions. Just paying more than the set amounts above won’t be enough to exempt the employee. Employees with high levels of responsibility, independence, or supervision over others will be considered exempt.

Usually, anybody considered a professional, a supervisor, or an executive will make the employee exempt—however, the law has definitions of these categories; your employer cannot just slap a “supervisor” label to your job title to try to exempt itself from paying you in accordance with the FLSA.

For supervisors, they must have input with the company on the employees who they supervise, and be able to evaluate others’ job performances. The supervisor must supervise at least 2 employees.

Managerial duties, as defined by the law, must include being able to set pay, assign duties, develop work strategies, develop safety techniques, put input into company policies and procedures, monitor government or legal compliance or evaluate or appraise worker performances.

Employers Can’t Evade the FLSA

Many employers try to get away from the FLSA’s requirements by giving employees the occasional managerial or supervisory task. But both management and supervision must be a significant part of the employee’s job duties; simply doing these things now and then, won’t make the employee an exempt employee.

Any profession that requires a specialized or professional degree, will also be exempt. That includes most positions that must be licensed by the government.

Contact the San Jose employment law lawyers at the Costanzo Law Firm today for help if you are working from home.



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