Introduction to the Fair Labor Standards Act (FLSA)

predetermined amount of pay on a weekly or less frequent basis, regardless of the quality or quantity of work actually performed. With certain limited exceptions, 123 the general rule is that an employer may not deduct any amount from an exempt employee’s salary for the quantity of work performed or absence. 2. T HE D UTIES T ESTS Assuming the salary tests are met, the corresponding “duties test” must be performed to ascertain whether the executive, administrative, or professional exemption applies. The duties tests are based upon a determination of an employee’s “primary duty.” An employee’s “primary duty” is defined as “the principal, main, major or most important duty that the employee performs.” 124 A determination of what tasks constitute an employee’s primary duty must be made on a case-by-case basis. The following non-exclusive list of factors should be considered when determining an employee’s primary duty:

 The relative importance of the exempt duties as compared with other types of duties;

 The amount of time spent performing exempt work;

 The employee’s relative freedom from direct supervision; and

 The relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 125

The amount of time an employee spends performing exempt work is a useful guide, but is not the sole factor for determining exempt status. 126 For example, “assistant managers in a retail establishment who perform exempt executive work such as supervising and directing the work of other employees, ordering merchandise, managing the budget and authorizing payment of bills may have management as their primary duty even if the assistant managers spend more than 50 percent of the time performing nonexempt work such as running the cash register.” 127 Only time that would be considered hours worked under the FLSA is considered in determining an employee’s primary duty. Thus, standby or on-call time is not counted in determining how much time an employee spends in the performance of his or her exempt duties. 128 If the employee performs a combination of exempt duties (i.e., administrative and professional), the employer may combine the exempt duties for purposes of determining whether an employee is exempt. 129

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 27