Exempt vs non-exempt employees

Non-exempt employees must be paid overtime for hours over 40 in a week; exempt employees don’t have to be. Being exempt depends on salary and duties, not on job title.

Published by ThatToolSite

This is a plain-language summary of the US federal rules, not legal advice. State laws can be stricter. If you think you are classified wrongly, contact the Department of Labor’s Wage and Hour Division or a lawyer.

If you are non-exempt, the overtime pay calculator estimates your regular and overtime pay for a week from your rate and hours.

Estimate overtime pay

What exempt and non-exempt mean

The words come from the US Fair Labor Standards Act (FLSA), the federal law on minimum wage and overtime.

  • Non-exempt employees are covered by the overtime rule. They must get at least the federal minimum wage and at least 1.5 times their regular rate for every hour over 40 in a workweek.
  • Exempt employees are “exempt” from those rules. Their employer doesn’t have to pay them overtime, however many hours they work.

Being exempt depends on the job and the pay, not on the job title or on what the employer calls it. In the Department of Labor’s words, “job titles do not determine exempt status.”

The three tests for being exempt

For the common white-collar exemptions (executive, administrative and professional), the Department of Labor’s Fact Sheet #17A sets out three tests. An employee is only exempt if all three are met:

TestWhat it asks
Salary basisAre you paid a fixed salary that isn’t cut when you do less or poorer work?
Salary levelIs that salary at least $684 a week ($35,568 a year)?
DutiesIs your main job executive, administrative or professional work as the rules define it?

Failing any one makes you non-exempt. A manager paid $30,000 a year is non-exempt because the salary is too low; a $90,000 data-entry clerk is non-exempt because the duties don’t qualify.

The salary threshold in 2026

RuleFederal amount
Standard salary level$684 a week, equal to $35,568 a year
Highly compensated employees$107,432 a year in total pay, including at least $684 a week in salary
Computer employees paid by the hourAt least $27.63 an hour

These are the levels on the Department of Labor’s page for the exemption. A 2024 rule that would have raised them was struck down by a federal court in November 2024, so the 2019 figures above still apply.

Some states, including California, New York and Washington, set a higher threshold. Where state and federal law differ, the employer must follow whichever protects the worker more.

The duties tests

A short version of Fact Sheet #17A. The employee’s primary duty must be one of these:

  • Executive: managing the business or a recognised department, regularly directing the work of at least two full-time employees or the equivalent, with real weight in hiring and firing.
  • Administrative: office or non-manual work directly related to running the business, such as finance, HR or compliance, including the use of discretion and independent judgement on significant matters.
  • Learned professional: work that needs advanced knowledge in a field of science or learning, normally gained through a long course of specialised study, such as engineers, accountants or pharmacists.
  • Creative professional: work that needs invention, imagination, originality or talent in a recognised artistic or creative field.
  • Computer employee: systems analysts, programmers, software engineers and similar skilled computer work.
  • Outside sales: making sales or taking orders, regularly away from the employer’s place of business. There is no salary test for this one.

The salary tests also don’t apply to teachers or to employees practising law or medicine.

Salaried but non-exempt

Being paid a salary doesn’t make you exempt. A salaried employee who fails the salary level or duties test is “salaried non-exempt” and must still be paid overtime. Their regular rate is the weekly salary divided by the hours it is meant to cover:

$800 a week for 40 hours = $20 an hour, so overtime is at least $30 an hour

A 46-hour week: $800 + 6 × $30 = $980

The reverse is also true: an hourly employee can be exempt in a few cases, such as a computer employee paid at least $27.63 an hour.

Jobs that are never exempt under these rules

  • Manual and “blue-collar” work. Production, construction and maintenance workers who work with their hands are not covered by these exemptions, however much they earn.
  • Police, firefighters, paramedics and similar first responders, whatever their rank or pay, for the front-line work they do.
  • Trainees who are training for an exempt job but aren’t yet doing its duties.

How exempt and non-exempt employees are paid

Non-exemptExempt
Overtime over 40 hoursAt least 1.5 × the regular rateNot required
Paid byHour or salarySalary (with a few exceptions)
Hours trackedMust be recordedOften not tracked
A short weekPaid for hours workedFull salary for any week with work in it, with limited exceptions
Minimum payFederal or state minimum wageAt least the salary level

The FLSA doesn’t require extra pay for weekends, nights or holidays as such; overtime depends only on hours over 40 in the workweek. Some employers and state laws pay more anyway.

Common myths about exempt status

  • “I’m salaried, so I can’t get overtime.” Salary is only one of the three tests. Fail the salary level or the duties test and overtime is owed.
  • “My title says manager, so I’m exempt.” Titles don’t count. A “shift manager” who spends the day serving customers and has no real say in hiring may well be non-exempt.
  • “I agreed to be exempt in my contract.” Employees can’t sign away their FLSA overtime rights; status depends on the actual job and pay.
  • “Overtime has to be approved to be paid.” An employer can discipline someone for working unapproved overtime, but non-exempt hours that were worked still have to be paid.
  • “Comp time instead of overtime pay is fine.” For private employers, time off later is not a substitute for overtime pay under the FLSA. Comp time is allowed only in the public sector, under set rules.

Checking your own status

  1. Find your weekly salary. If it’s under $684, you are non-exempt under federal law.
  2. Check your state’s threshold, which may be higher.
  3. Compare your main duties, not your title, with the tests above.
  4. Keep your own record of the hours you work if you think you should be getting overtime.

The salary to hourly calculator shows what your salary is per hour, and the overtime pay guide works through overtime with bonuses.

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