EXECUTIVE EXEMPTION WORKSHEET

Transcription

1 EXECUTIVE Job Title: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Yes No Comments 1. Does the employee currently earn $ or more per week? Current weekly salary: $ POSTPONED: Effective 12/1/16 will the employee earn $913 or more per week or $47,476 annually? $ SALARY BASIS TEST 2. Does the employee regularly receive a predetermined amount of compensation each pay period? 3. Does the employee receive full salary without any deductions even if there are variations in the quality or quantity of the employee s work? 4. Does the employee receive full salary for working less than a full workweek due to absences caused by the employer or the operating requirements of the company? 5. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 6. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? Executive Exemption Page 1 of 2

2 DUTIES TEST 7. Is the employee s primary duty 1 management 2 of the enterprise or a customarily recognized department or subdivision? Name of dept/subdivision: 8. Does the employee customarily and regularly 3 direct the work of at least two full-time employees or their equivalent (e.g., four half-time employees)? # of full-time employees supervised: # of part-time employees supervised: 9. Does the employee have the authority to hire or fire, or whose recommendations for hiring, firing, and other changes in status are given particular weight 4? DUTIES TEST FOR BUSINESS OWNERS Yes No Comments 1. Is the employee actively engaged in managing 2 the business? 2. Does the employee own at least a bona fide 20% equity interest in the business? 1 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. 2 Examples of management duties include, but are not limited to, interviewing applicants, training and directing the work of employees, maintaining records for supervisory or control purposes, conducting performance appraisals, disciplining employees, and preparing and monitoring the department budget. 3 Customarily and regularly means greater than occasional but less than constant. Includes work normally and recurrently performed every workweek but does not include isolated or one-time tasks. 4 In determining if an employee s recommendations are given particular weight, consider if it is part of the employee s job to make such recommendations for the employees he/she supervises and the frequency with which such recommendations are made, requested, and relied upon. Even if an employee does not have the authority to make the final decision or a higher level manager s recommendation has more importance, the employee s recommendations may still meet the particular weight threshold. This worksheet was completed by Name: Date: Executive Exemption Page 2 of 2

3 HIGHLY COMPENSATED EMPLOYEE JobTitle: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Yes No Comments 1. Is the employee s total annual compensation $100,000 or more? Total annual compensation can include commissions, nondiscretionary bonuses, and other nondiscretionary compensation during a 52-week period. POSTPONED: Effective 12/1/16 will the employee s total annual compensation be $134,004 or more? $ SALARY BASIS TEST 3. Does the employee regularly receive a predetermined salary each pay period? 4. Does the employee receive full salary without any deductions even if there are variations in the quality or quantity of the employee s work? 5. Does the employee receive full salary for working less than a full workweek due to absences caused by the employer or the operating requirements of the company? 6. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 7. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? DUTIES TEST 8. The employee s primary duty 1 is office or non-manual work Primary duty: 9. The employee customarily and regularly 2 performs any one or more of the exempt duties of an: (check one, if applicable) Exempt Duty Performed executive employee administrative employee professional employee Highly Compensated Exemption Page 1 of 2

4 1 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. 2 Customarily and regularly means greater than occasional but less than constant. Includes work normally and recurrently performed every workweek but does not include isolated or one-time tasks. This worksheet was completed by Name: Date: Highly Compensated Exemption Page 2 of 2

5 ADMINISTRATIVE JobTitle: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Yes No Comments 1. Does the employee currently earn $ or more per week? Current weekly salary: POSTONED: Effective 12/1/16 will the employee earn $913 or more per week or $47,476 annually? $ SALARY BASIS TEST 2. Does the employee regularly receive a predetermined amount of compensation each pay period? 3. Does the employee receive full salary without any deductions even if there are variations in the quality or quantity of the employee s work? 4. Does the employee receive full salary for working less than a full workweek due to absences caused by the employer or the operating requirements of the company? 5. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 6. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? DUTIES TEST 7. Is the employee s primary duty 1 office or non-manual work directly related to the management or general business operations 2 of the employer or of the employer s customers? Primary duty: 8. Does the employee exercises discretion and independent judgment 3 regarding matters of significance 4? Administrative Exemption Page 1 of 2

6 OR Duties Test for Employees Who Perform Administrative Functions In An Educational Establishment Yes No Comments 1. Is the employee s primary duty 1 the performance of administrative functions that are directly related to academic instruction or training in an educational establishment? Primary duty: 1 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. 2 Directly related to management or general business operations means work directly related to assisting with the running or servicing of the organization, as distinguished from working on a production line or selling a product in a retail or service establishment. Examples include, but are not limited to, work in the following functional areas: accounting, purchasing, insurance, marketing, public relations, computer network, and human resources. 3 Discretion and independent judgment means comparing and evaluating possible options and acting on/making a decision after the possibilities have been considered. The term must be applied in light of all the facts involved in the employee s particular situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to, whether the employee: Has the authority to formulate, affect, interpret, or implement management policies or operating practices; Carries out major assignments in conducting the operations of the business; Performs work that affects business operations to a substantial degree; Has the authority to commit the employer in matters that have significant financial impact; and Is able to waive or deviate from the employer s established policies and procedures without authorization. If an employee s decisions are revised or reversed, it does not necessarily mean that the employee is not exercising discretion and independent judgment. The employee must use more than skill in applying well-established techniques, procedures, or specific standards described in manuals or other reference materials. 4 Matters of significance means the level of importance or consequence of the work performed. This worksheet was completed by Name: Date: Administrative Exemption Page 2 of 2

7 PROFESSIONAL JobTitle: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Yes No Comments 1. Does the employee currently earn $455 or more per week? Current weekly salary: POSTPONED: Effective 12/1/16 will the employee earn $913 or more per week or $47,476 annually? $ SALARY BASIS TEST 2. Does the employee regularly receive a predetermined amount of compensation each pay period? 3. Does the employee receive full salary without any deductions even if there are variations in the quality or quantity of the employee s work? 4. Does the employee receive full salary for working less than a full workweek due to absences caused by the employer or the operating requirements of the company? 5. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 6. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? *The salary level and salary basis tests do not apply to bona fide teachers, lawyers, and doctors DUTIES TEST FOR LEARNED PROFESSIONALS 1. Is the employee s primary duty 1 work requiring advanced knowledge 2 in a field of science or learning 3 that is customarily acquired by a prolonged course of specialized intellectual instruction 4? Primary duty: 2. Does the employee perform work that is predominantly intellectual in character and which requires the consistent exercise of discretion and judgment 5? Professional Exemption Page 1 of 2

8 DUTIES TEST FOR TEACHERS Yes No Comments 1. Is the employee s primary duty 1 teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge to students? Primary duty: 2. Does the employee work in an educational establishment? DUTIES TEST FOR CREATIVE PROFESSIONALS Yes No Comments 1. Is the employee s primary duty 1 work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor 6? Primary duty: 1 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. 2 Work requiring advanced knowledge means work that is predominantly intellectual in character and which typically requires the consistent exercise of discretion and judgment. An employee uses advanced knowledge when analyzing, interpreting, or making deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level. 3 Field of science or learning includes, but is not limited to, teaching, law, medicine, engineering, accounting, architecture, pharmacy, and various physical, chemical and biological sciences. It does not include mechanical arts or skilled trades even if an employee s knowledge is of an advanced type. 4 Prolonged course of specialized intellectual instruction means having the appropriate academic degree. The learned professional exemption typically applies to those professions where specialized academic training is a standard requirement for entrance into the profession. It does not apply to occupations where most employees normally acquire their skill by work experience. In some cases, however, employees who have substantially the same knowledge and perform substantially the same work as degreed employees but have attained their knowledge through a combination of on-the-job experience and intellectual instruction may also qualify for the exemption. 5 Discretion and independent judgment means comparing and evaluating possible options and acting on or making a decision after the possibilities have been considered. The term must be applied in light of all the facts involved in the employee s particular situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to, whether the employee: Has the authority to formulate, affect, interpret, or implement management policies or operating practices; Carries out major assignments in conducting the operations of the business; Performs work that affects business operations to a substantial degree; Has the authority to commit the employer in matters that have significant financial impact; and Is able to waive or deviate from the employer s established policies and procedures without authorization. If an employee s decisions are revised or reversed, it does not necessarily mean that the employee is not exercising discretion and independent judgment. The employee must use more than skill in applying well-established techniques, procedures, or specific standards described in manuals or other reference materials. 6 Includes the fields of music, writing, acting, and graphic arts. This worksheet was completed by Name: Date: Professional Exemption Page 2 of 2

9 COMPUTER-RELATED JobTitle: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Yes No Comments 1. If paid on a salary or fee basis, does the employee earn $455 or more per week? Current weekly salary: POSTPONED: Effective 12/1/16 will the employee earn $913 or more per week or $47,476 annually? $ OR 2. If paid on an hourly basis, is the employee s rate of pay at least $27.63 per hour? Current hourly rate: SALARY BASIS TEST 3. Does the employee receive full salary without any deductions even if there are variations in the quality or quantity of the employee s work? 4. Does the employee receive full salary for working less than a full workweek due to absences caused by the employer or the operating requirements of the company? 5. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 6. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? Computer-Related Exemption Page 1 of 2

10 DUTIES TEST Yes No Comments 1. Does the employee perform work that consists of one or more of the following? (check all that apply) computer systems analyst computer programmer software engineer other similarly skilled job in the computer field specify: 2. Does the employee s primary duty 1 consist of one of the following? (check one, if applicable) application of systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system functional specifications; design, development, documentation, analysis, creation, testing, or modification of computer systems or programs (including prototypes) based on and related to user or system design specifications; design, documentation, testing, creation, or modification of computer programs related to machine operating systems; A combination of the duties listed above, the performance of which requires the same level of skills. 1 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. This worksheet was completed by Name: Date: Computer-Related Exemption Page 2 of 2

11 OUTSIDE SALES JobTitle: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Note: There is no salary level test for the outside sales exemption SALARY BASIS TEST Yes No Comments 1. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 2. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? DUTIES TEST 3. Does the employee s job involve outside sales 1? 4. Is the employee s primary duty 2 making sales or obtaining orders or contracts for services or for the use of facilities 3 for which a consideration will be paid by the customer? Primary duty: 5. Does the employee customarily and regularly 4 work away from the employer s place(s) of business when performing the above duties? 1 Outside sales involves sales at a customer s place of business or home. It does not include sales made by mail, telephone, or via the Internet unless such contact is used to supplement the personal visit. 2 Primary duty means the principal, main, major, or most important duty the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. 3 Use of facilities includes the selling of time on radio or tv, the solicitation of advertising for newspapers, and the solicitation of freight for railroads. 4 Customarily and regularly means greater than occasional but less than constant. Includes work normally and recurrently performed every workweek but does not include isolated or one-time tasks. This worksheet was completed by Name: Date: Outside Sales Exemption Page 1 of 1

12 EMPLOYEES PAID COMMISSIONS BY RETAIL ESTABLISHMENTS Job Title: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Note: There is no salary level test for the retail sales exemption SALARY BASIS TEST Yes No Comments 1. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 2. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? REQUIREMENTS If a retail or service employer elects to use the Section 7(i) overtime exemption for commissioned employees, three conditions must be met. Unless all three conditions are met, the Section 7(i) exemption is not applicable, and overtime pay must be paid for all hours worked over 40 in a workweek at time and one-half the regular rate of pay. 1. Is the employee employed by a retail or service 1 establishment? 2. Does the employee's regular rate of pay exceed 1½ times the applicable minimum wage 2 for every hour worked in a workweek in which overtime hours are worked? 3. Does more than half the employee's total earnings in a representative period 3 consist of commissions? Yes No Comments 1 Retail and service establishments are defined as establishments 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.) 2 To determine if an employer has met the "more than 1½ times the applicable minimum wage" condition, the employer may divide the employee's total earnings attributed to the pay period by the employee's total hours worked during such pay period. If the result is greater than time and one-half the minimum wage, this condition of the exemption has been met. 3 The representative period for determining if enough commissions have been paid may be as short as one month, but must not be greater than one year. The employer must select a representative period in order to determine if this condition has been met. Retail Sales Exemption Page 1 of 2

13 If the employee is paid entirely by commissions, or draws and commissions, or if commissions are always greater than salary or hourly amounts paid, the-greater-than-50%-commissions condition will have been met. If the employee is not paid in this manner, the employer must separately total the employee's commissions and other compensation paid during the representative period. The total commissions paid must exceed the total of other compensation paid for this condition to be met. Hotels, motels and restaurants may levy mandatory service charges on customers which represent a percentage of amounts charged customers for services. If part or all of the service charges are paid to service employees, that payment may be considered commission and, if other conditions in section 7(i) are met, the service employees may be exempt from the payment of overtime premium pay. Regulations require that employers maintain accurate records of hours worked each workday, hours worked each workweek, and earnings and wages paid. Without hours worked and earnings records, the employer will be unable to substantiate that all conditions for the exemption have been met. In addition, the employer must select a representative period of at least one month, but not more than one year, which typifies the characteristics of the employee's earning pattern, in order to test whether the employee is paid principally by commissions. Tips paid to service employees by customers may never be considered commissions for the purposes of this exemption. An employee is employed by the central office of a retail chain enterprise as a sales instructor working in the various retail establishments. Since this employee is employed by the central office and not "by" the retail "establishment", the exemption does not apply. This worksheet was completed by Name: Date: Retail Sales Exemption Page 2 of 2

14 MOTOR CARRIER Job Title: Note: When completing this worksheet for a position that has two or more incumbents, you must be able to answer all of SALARY LEVEL TEST Note: There is no salary level test for the motor carrier exemption SALARY BASIS TEST Yes No Comments 1. Are only full day salary deductions taken from the employee s pay (no partial day deductions except for FMLA absences)? 2. Are unpaid suspensions for full weeks only unless for major safety or workplace conduct rules? Section 13(b)(1) of the FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act of 1935, except those employees covered by the small vehicle exception described below. Thus, the 13(b)(1) overtime exemption applies to employees who meet the following conditions: 1. Is the employee employed by motor carrier or motor private carrier, as defined in 49 U.S.C. Section (see Employer 1 below)? 2. Is the employee a Driver, driver s helper, loader, or mechanic whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce (see Employee Duties below)? Yes No Comments 3. The employee is not covered by the small vehicle exception (see Small Vehicle Exception below 2 )? 1 Employer Motor Carriers are persons providing motor vehicle transportation for compensation; Motor Private Carriers are persons other than motor carriers transporting property by motor vehicle if the person is the owner, lessee, or bailee of the property being transported, and the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise. Motor Carrier Exemption Page 1 of 2

15 2 Small Vehicle Exception Notwithstanding the Section 13(b)(1) exemption, the overtime provisions of Section 7 of the FLSA shall apply to an employee of a motor carrier or motor private carrier in any work week that: 1. The employee s work, in whole or in part, is that of a driver, driver's helper, loader or mechanic affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce, except vehicles: (a) Designed or used to transport more than 8 passengers, including the driver, for compensation; or (b) Designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or (c) Used in transporting hazardous material, requiring placarding under regulations prescribed by the Secretary of Transportation; and 2. The employee performs duties on motor vehicles weighing 10,000 pounds or less. The Section 13(b)(1) exemption does not apply to an employee in such work weeks even though the employee's duties may also affect the safety of operation of motor vehicles weighing greater than 10,000 pounds, or other vehicles listed in subsections (a), (b) and (c) above, in the same work week. EMPLOYEE DUTIES TEST The employee s duties must include the performance, either regularly or from time to time, of safety-affecting activities on a motor vehicle used in transportation on public highways in interstate or foreign commerce. Employees must perform such duties as a driver, driver s helper, loader, or mechanic. Employees performing such duties meet the duties requirement of the exemption regardless of the proportion of safety affecting activities performed, except where the continuing duties have no substantial direct effect on safety of operation, or where such safety affecting activities are so trivial, casual, and insignificant as to be de minimis (so long as there is no change in the duties). Transportation involved in the employee s duties must be in interstate commerce (across State or international lines) or connect with an intrastate terminal (rail, air, water, or land) to continue an interstate journey of goods that have not come to rest at a final destination. Safety affecting employees who have not made an actual interstate trip may still meet the duties requirement of the exemption if: Yes No Comments a) The employer is shown to have an involvement in interstate commerce; and b) The employee could, in the regular course of employment, reasonably have been expected to make an interstate journey or could have worked on the motor vehicle in such a way as to be safetyaffecting. The Secretary of Transportation will assert jurisdiction over employees for a four-month period beginning with the date they could have been called upon to, or actually did, engage in the carrier's interstate activities. Thus, such employees would satisfy the duties requirement of the Section 13(b)(1) exemption for the same four-month period, notwithstanding references to the contrary in 29 C.F.R Motor Carrier Exemption Page 2 of 2