The information below is designed to assist you in determining whether an employee is exempt from the FLSA.
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1 UAB HR Compensation Fair Labor Standards Act (FLSA) Exempt/Non-Exempt Checklist The information below is designed to assist you in determining whether an employee is exempt from the FLSA. Test 1: Salary Level & Basis 1. Salary means employee regularly receives a predetermined amount each pay period for work performed any week. 2. Salary must be exclusive of board, lodging or other facilities. 3. Salary may not be subject to reductions based on variations in the quality or quantity of work (i.e., snow days). 4. Employee may be subject to disciplinary deductions, in full-day increments, pursuant to a written policy uniformly applied to serious workplace misconduct. 5. Absences of a work day or longer may result in full-day salary reductions if the absence is caused by personal illness or other personal reasons. 6. Workweek deductions are unavailable for absences caused by jury duty, witness duty, or temporary military leave. 7. Salary deductions are available for absences governed by the FMLA. 8. Special treatment is available to employees who receive total annual compensation of at least $100,000, composed of salary, incentive, and other non-discretionary payments. Question 1: Salary Level Does the employee receive a salary of at least $455 per week? If no, position is not exempt. Yes No Question 2: Salary Basis Does the employee receive a predetermined, fixed salary that is not subject to reduction due to variations in quality or quantity of work performed? If either of the questions above was answered no, the job is not exempt. If both questions were answered yes, the job meets the salary level and salary basis requirements. You will need to proceed to determine if the job meets the job duties requirements. 02 FINAL.docx 1
2 Test 2: Job Duties Employee must meet all of the criteria specified in one or more of the following exemptions: Category Executive Administrative Educational Establishments and Administrative Professional Learned Professional Artistic Professional - Other Computer Related Job Duties Required Primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and must have the authority to hire or fire other employees, or the employee s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. Primary duty must be 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 includes the exercise of discretion and independent judgment with respect to matters of significance. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; the advanced knowledge must be in a field of science or learning; and the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. Practice of Law or Medicine: An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession Must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field. The primary duty must consist of: 1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 2) the 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; 3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 4) a combination of the aforementioned duties, the performance of which requires the same level of skills 02 FINAL.docx 2
3 Executive Exemption Test Please read the following information provided to assist you in answering each of the questions at the end of the narratives. If the questions are all answered yes, the employee meets the executive exemption test. Duties and Responsibilities 1. Management duties include: a. interviewing, selecting and training of employees; b. setting and adjusting their rates of pay and hours of work; c. directing their work; d. maintaining their production or sales records for use in supervision or control; e. appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; f. handling their complaints and grievances and disciplining them when necessary; g. planning the work; h. determining the techniques to be used; i. proportioning the work among the employees; j. determining the types of materials, supplies, machinery or tools to be used, or merchandise to be bought, stocked or sold; k. controlling the flow and distribution of materials or merchandise and supplies; l. providing for the safety of employees and property. 2. Primary duty generally means the principal or most important duty the employee performs. 3. Employee must direct a unit of employees with a permanent status-continuing function, not merely a collection of employees assigned to complete a project. 4. Consider what percentage of time employee spends performing similar duties to those completed by his subordinates. 5. If fewer than six subordinates are supervised, examine primary duty very closely (i.e., employee turnover, contacts with internal and external customers, maturity of functional area). 6. Does the incumbent: YES NO Interview, select and train employees? Coach employees in proper job performance techniques and procedures? Direct the work of employees and set/adjust their rates of pay and hours of work? Maintain records on employee productivity for use in supervision or control? Appraise employees productivity and efficiency to recommend promotions or other changes in status? Handle employee complaints and grievances and discipline employees when necessary? Plan other employees work and determine the techniques used in their work? Apportion work among different employees? Determine the types of materials, supplies, or tools to be used by other employees? Control the flow and distribution of materials and supplies? Provide for the safety of employees and the property of the employer? Control the budget? If yes, please explain: Monitor or implement legal compliance measures? Does the incumbent have shared responsibility for the supervision of the same employees in the same department? If yes, please describe: Does the incumbent have the authority to hire or fire other employees? If no, is it part of the incumbent s job to make recommendations on hiring, firing, advancement, promotion, or other change of status? 02 FINAL.docx 3
4 Executive Exemption Question 1: Is the employee s primary duty the management of a customarily recognized department? Authority Are suggestions and recommendations part of the employee s job duties? Are recommendations frequently made or requested? Are recommendations frequently relied upon by management? Do the suggestions involve employees the executive regularly directs? YES NO Executive Exemption Question 2: Does the employee have the authority to hire or fire assigned employees? Executive Exemption Question 3: Are the employee s recommendations concerning hiring, firing, advancement, promotion or other changes given particular weight? Supervision 1. Joint or shared supervision with another exempt classified employee is insufficient. 2. Supervision in the regular manager s absence is insufficient. Executive Exemption Question 4: Do the employee s duties include the supervision of two or more full-time employees or the equivalent every week (at least 80 hours of subordinate time)? Executive Exemption Question 5: Does employee devote at least 80% of time to activities that are directly and closely related to exempt work? Notes: 02 FINAL.docx 4
5 Administrative Exemption Test Please read the following information provided to assist you in answering each of the questions at the end of the narratives. If questions 1, 2 and 3, or 1 and 4 are answered yes, the employee meets the administrative exemption test. Duties and Responsibilities 1. In order to identify administrative versus production work, you must first identify the product(s) or service(s) provided by the employer. In other words, how does the campus generate revenue? 2. After identifying the campus product(s) or service(s), determine whether the employee s work primarily involves producing the product or delivering the service. 3. The administrative operations of the business include: Accounting Advertising Auditing Budgeting Computer Network Finance Human Resources Insurance Internet & Database Administration Labor Relations Legal & Regulatory Compliance Marketing Personnel Management Procurement Public/Government Relations Purchasing Quality Control Research Safety and Health Tax YES NO 4. Administrative duties do not include routine or structured tasks such as bookkeeping, data tabulation or clerical duties. And they do not include applying well-established techniques, procedures or specific standards described in manuals or other sources. 5. The administrative work must be of substantial importance to the management or operation of the business, such as work affecting the development of policies or responsibilities to execute or carry out policy. 6. To qualify as a primary duty, the employee s principal or most important duty must involve performing the high-level administrative functions. Administrative Exemption Question 1: Does the employee s primary duty consist of the performance of office or non-manual work directly related to management policies or general business operations (i.e., administrative work) of the employer or its customers, as opposed to primarily involving production or sales of goods or services? 02 FINAL.docx 5
6 Discretion and Independent Judgment 1. The employee must exercise discretion and independent judgment with respect to matters of significance as opposed to daily routine decisions. Matters of significance refer to the level of importance or consequence of the work performed. An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. 2. Independent judgment and discretion involves the comparison and evaluation of possible courses of conduct and having the authority to make an independent choice, free from immediate direction with respect to matters of significance. Decisions and recommendations may be reviewed at a higher level, and upon occasion, revised or reversed. It also does not include the use of manuals, guidelines or software packages to make determinations. However, the use of manuals, guidelines or other established procedures is permitted if they contain or relate to highly technical, scientific, legal, financial or other similarly complex matters or they can be understood or interpreted only by those with advanced or specialized knowledge or skills. 3. The exercise of independent judgment and discretion does not include the use of skill in applying techniques, procedures or special standards. 4. Discretion and independent judgment is based on several considerations: Does the employee: YES NO Have authority to formulate, affect, interpret or implement management policies or operating practices? If yes, provide example. Carry out major assignments in conducting the operations of the university or hospital? Perform work that affects business operations to a substantial degree? Have authority to commit the employer in matters that have significant financial impact? If yes, provide example. Have authority to waive or deviate from established policies and procedures without prior approval? If yes, provide example. Have authority to negotiate and bind the company on significant matters? Provide consultation or expert advice to management? Participate in planning long or short term business objectives? Investigate and resolve matters of significance on behalf of management? Represent the company in handling complaints, arbitrating disputes or resolving grievances? Make recommendations to management on policies and procedures? Conduct independent investigation and resolution of issues without prior approval? 5. Discretion and independent judgment are not: applying knowledge, following prescribed procedures or determining which or determining which procedures to follow; determining whether specified standards have been satisfied, even if there is some leeway in reaching a conclusion; performing inspection functions by following established techniques and procedures with skills acquired through special training or experience; formulating recommendations based upon the development of facts concerning conformity with a known standard; comparing items based upon established standards, known through experience or written manuals; screening applicants or conducting interviews to determine satisfaction of certain minimum qualifications; making decisions that do not commit the employer in substantial respects financially or otherwise; or negotiating settlements with policy holders where the individual is not given reasonable latitude in carrying on those negotiations. 02 FINAL.docx 6
7 Administrative Exemption Question 2: Do the employee s duties include work requiring the exercise of discretion and judgment? Administrative Exemption Question 3: Does employee devote at least 80% of time to activities that are directly and closely related to exempt work? Educational Establishments and Administrative Exemption Test Please read the following information provided to assist you in answering each of the questions at the end of the narratives. If questions 1, 2 and 3 are all answered yes, the employee meets the administrative exemption test. Primary Duties 1. An educational institution includes an elementary or secondary school system, an institution of higher education and special schools for mentally or physically disabled or gifted children, with no distinction between public and private organizations. 2. Academic administrative activities mean work directly relate to the academic operations and academic functions of the institution, such as administration of curriculum, examination of quality and methods of instruction, measurement of learning potential and achievement, maintenance of academic and grading standards and other aspects of a teaching program. 3. Academic administrative responsibilities do not include building management and maintenance, supporting the health of students or activity performed by social workers, psychologists or even dieticians. Educational Establishments and Administrative Exemption Test Question 4: Does the employee s primary duty consist of the performance of office or non-manual work, directly related to academic instruction or training in an educational institution? i.e. teaching or academic administrative functions Notes: 02 FINAL.docx 7
8 Professional-Learned/Artistic Exemption Please read the following information provided to assist you in answering each of the questions at the end of the narratives. If questions 1, 2 and 3 or 1 and 4 are answered yes, the employee meets the professional exemption test. Knowledge or Education Required 1. Must be knowledge which cannot be attained at the high school level. 2. Knowledge must not be restricted to the mechanical arts. 3. Requisite knowledge must be customarily acquired by a prolonged course of specialized intellectual study. In some subjects, however, the specialized intellectual study may be acquired by a combination of intellectual study and work experience. 4. Professions which are covered by exemption include: law, medicine, nursing, accounting, actuarial computation, engineering, education and various types of physical, chemical and biological sciences. 5. Primary duty generally indicates that the principal and most important part of the job is pursuing the profession. Professional-Learned/Artistic Exemption Question 1: Does the employee perform work requiring knowledge of an advanced type in a recognized field of science or learning? Discretion and Judgment 1. Discretion and judgment may be: a. making a decision to depart from prescribed standards or permitted tolerances; b. making decisions that affect the operational policies of the employee s department; c. formulating recommendations to a customer for the purchase of securities; d. making decisions in connection with negotiations where the individual is given reasonable latitude in carrying on those discussions, which are binding on the employer; e. formulating recommendations, even if management personnel must review and accept the recommendation prior to implementation; f. formulating and participating in the formulation of policy for the business unit; or g. broad authority to commit the employer in substantial respects financially. 2. Discretion and judgment is not: a. applying knowledge, following prescribed procedures or determining which procedures to follow; b. determining whether specified standards have been satisfied, even if there is some leeway in reaching a conclusion; c. performing inspection functions by following established techniques and procedures with skills acquired through special training or experience; d. formulating recommendations based upon the development of facts concerning conformity with a known standard; e. comparing items based upon established standards, known through experience or written manuals; f. screening applicants or conducting interviews to determine satisfaction of certain minimum qualifications; or g. making decisions that do not commit the employer in substantial respects financially or otherwise. Professional-Learned/Artistic Exemption Question 2: Do the employee duties include work requiring advanced knowledge predominantly intellectual in character and consistent exercise of discretion and judgment? 02 FINAL.docx 8
9 Professional-Learned/Artistic Exemption Question 3: Does employee devote at least 80% of time to activities that are directly and closely related to exempt work? Primary Duties Professional-Artistic 1. A recognized field of artistic or creative endeavor includes music, writing, acting and the graphic arts. The work requires intelligence, diligence and accuracy with the individual having broad leeway to develop an original work product. 2. The exemption turns upon the constraints placed on the employee. Positions that primarily require fact gathering and reporting and not creative or original analysis and interpretation, do not satisfy the standard. 3. Positions that limit the employee s latitude, in terms of controlling the final work product, are also vulnerable to challenge. Professional-Learned/Artistic Exemption Question 4: Do the employee s primary duties consist of activities requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor? Notes: 02 FINAL.docx 9
10 Computer Exemption Primary Duties Question 1: Does the employee s primary duty consist of the performance of work that requires the application of one of the following: Systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system functional specifications? The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on user or system design specifications? The design, documentation, testing, creation or modification of computer programs related to machine operating systems? A combination of the duties stated above, which requires the same level of skill? The exemption typically requires the expertise and skill to work independently. YES NO The exemption does not apply to positions involving operation, repair or maintenance of computer hardware, networks or equipment. Notes: 02 FINAL.docx 10
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