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The Overtime Primary Duty Test For The Administrative Exemption Under The Fair Labor Standards Act

Under the Fair Labor Standards Act (“FLSA”), to establish that an employee is subject to the administrative exemption, which is narrowly construed against the employer and in favor of the presumption that the employee is entitled to overtime, a defendant-employer must show that:

(1) the employee is compensated on a salary or fee basis of at least $455 per week;

(2) whose primary duty is “the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;” and

(3) whose primary duty includes the “exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200.

It is well-established that “primary duty” means “the principal, main, major or most important duty that the employee performs.” 29 C.F.R. § 541.700(a). For an employee to meet the primary duty prong of the administrative exemption, the “primary duty must be the performance of exempt work.” 29 C.F.R. § 541.700(a). In determining an employee’s primary duty, the following factors are relevant:

(1) the relative importance of the exempt duties as compared with other types of duties;
(2) the amount of time spent performing exempt work;
(3) the employee’s relative freedom from direct supervision; and
(4) the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. An employee who spends greater than half of his time at work performing exempt work generally meets the primary duty requirement. 29 C.F.R. § 541.700(b). However, an employee who spends less than half of his time performing exempt work may still meet the primary duty requirement on the basis of other factors.