Can You Be Exempt and Non-Exempt at the Same Time?

You can allow an employee to work two different jobs for your company. However, under the FLSA, you cannot classify an employee as both exempt and nonexempt — it must be one or the other. To know which one to use, you must first combine all of the employee’s job duties into one.

Considering the employee’s two jobs as one, ask yourself: What is his or her primary duty? If the primary duty being performed is exempt work, then you can classify the employee as exempt.

What the FLSA means by primary duty

FLSA regulations define primary duty as “the principal, main, major or most important duty that 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.”

Factors to consider

When determining primary duty, you’ll need to consider a number of factors, including:

  • How important the exempt duties are compared with other types of duties.
  • How much time the employee spends doing exempt work.
  • How much freedom the employee has from direct supervision.

Per FLSA regulations, if the employee spends more than 50 percent of his or her time doing exempt work, then the primary duty requirement is generally satisfied. But as noted above, time alone is not the only factor to consider when determining primary duty.

After examining the duties for the two jobs as a whole, you can classify the employee as exempt if the FLSA’s primary duty requirement is met. If the condition is not satisfied, then the employee is nonexempt.

Keep in mind that some states have their own exempt rules, including rules regarding how much time an employee should spend performing exempt work in order to be classified as exempt.

Compensating exempt employees

If the combined duties render the employee as exempt, then you must adhere to the FLSA’s salary basis rule if applicable. Under the salary basis rule, you must pay the exempt employee no less than $684 per week. You do not have to pay the employee overtime if he or she works more than 40 hours in a week.

That said, you can give the employee additional compensation for working beyond the regular workweek, such as a flat sum, straight-time hourly pay, a bonus or paid time off. You can also provide additional compensation (e.g., hourly pay) for the second job.

Compensating nonexempt employees

If the combined duties do not qualify as exempt work, then the employee is nonexempt under the FLSA. In this case, the employee must receive no less than the federal minimum wage plus overtime pay for hours worked over 40 in a workweek. Make sure you check state law for any minimum wage or overtime requirements.

Classification decisions are often complex and subtle. We can provide help when you are making distinctions at your company. Give us a call.

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