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Exempt and Non-Exempt Employees

New York Attorneys Advocating for Workers

When employees take new positions, they are generally advised of their rate of pay, hours, and benefits by their employers. Employers also classify workers as exempt or non-exempt employees at the time of hire, and their designation can affect an employee’s rights with regard to compensation and benefits. As a result, it is crucial that people understand the implications of their employment classification, and if they are improperly categorized, they should take the measures necessary to protect their interests. At Gerstman Schwartz, our knowledgeable New York wage and hour lawyers have ample experience handling a variety of employment claims for aggrieved employees. If you are seeking clarification regarding your employee classification, or if you were improperly designated as an exempt employee, we can advise you on your potential claims.

Non-Exempt Employees

In terms of employment, whether employees are classified as exempt or non-exempt employees affects whether they are entitled to overtime and a minimum wage. Generally, any employee who does not fall under an enumerated exception is deemed non-exempt. Under the Fair Labor Standards Act (FLSA), an employee is merely defined as any person employed by an employer who does not fall within an exemption. Thus, all employees are non-exempt unless otherwise indicated. Under the New York Labor Law (NYLL), anyone who is either employed by or permitted to work for an employer in any occupation that is not designated exempt will be considered a non-exempt employee.

Executive, Administrative, and Professional Employee Exemptions

The FLSA and NYLL both list employees who are engaged in executive, administrative, and professional duties as exempt from minimum wage and overtime requirements. Under each designation, an employee must meet a primary duty and salary test to be deemed exempt.

Under the primary duty test, a New York employer must show that the major, main, or most important duty that the employee performs qualifies them as an executive, administrative, or professional employee as defined by the FLSA or NYLL. To be deemed exempt executives, employees’ main duties must be the management of the enterprise. They also must have the right to fire and hire other employees, regularly and customarily direct the work of two or more employees, and meet other tests as well.

Employees may be categorized as administrative if their main duties consist of the performance of office work that directly relates to general operations or management policies, and they directly assist the employer or a person working in an executive or administrative capacity. Employees must also regularly exercise independent judgment and discretion.

Employees will be deemed professional if their primary duties consist of performing work that requires advanced knowledge in a scientific field or learning that is typically acquired via a prolonged course of specialized instruction and study. The work must also be primarily intellectual and require the regular exercise of judgment and discretion.

The salary test requires employers to show that employees regularly receive a preset amount of compensation in each pay period that is not reduced due to variations in the employees’ work or the number of hours or days worked. The salary must also meet minimum thresholds.

Other Exempt Employees

There are numerous other employees deemed exempt under the FLSA and NYLL. These include outside salespeople, who are employees who regularly and predominantly work away from the employer’s premises for the purpose of making sales, selling and delivering goods, or obtaining contracts for service or orders. These also include computer employees, who are skilled workers such as software engineers, computer programmers, and computer system analysts.

Speak to a Dedicated New York Attorney

If you have questions or concerns regarding the classification of exempt and non-exempt employees, it is prudent to speak to a lawyer. The dedicated wage and hour lawyers at Gerstman Schwartz can advise you on your rights, and if you were improperly classified or otherwise denied compensation that you may be owed, we can assist you in pursuing damages. We frequently represent people in wage and hour lawsuits in New York City and in Nassau and Suffolk Counties. You can contact us through our online form or by calling us at our New York City office at (212) 227-7070 or our Garden City office at (516) 880-8170 to schedule a meeting.

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