JULY 2024
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
Share & Perform Demo
Looking to boost employee engagement and customer experience?
Register for the:
Share & Perform Demo
Delivered by Vida HR
July 10th @ 11am - 12:00pm MT
Excellent employee engagement and positive company culture are critical in attracting and retaining good talent. That’s no secret.
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Achieving it can be challenging when managing both an on-site and remote workforce. Share & Perform delivered by Vida HR allows you to provide consistent, year-round feedback by sharing information, ideas, and recognition across individuals and teams. That means company-wide collaboration with features like:
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Performance Reviews
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Goal-setting tools for the individual, group or whole company
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Recognizing and rewarding a job well done
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Enabling employees to stay aligned regardless of location, function, or project
Are You a HRO or Payroll Client of Vida HR?
You are welcome to attend! Check your inbox for the invite to the isolved Share & Perform Demo! Contact your service team if you still have not received it.
QUESTION:
I had a baby earlier this year and have just returned to work....
My employer is requiring me to pump in the bathroom – is this legal?
Short Answer:
The short answer is no; this is not legal.
Detailed Answer:
The Providing Urgent Maternal Protections for Nursing Mothers Act aka the PUMP Act, a federal law passed in December 2022, requires employers provide nursing mothers with reasonable break time and a private place to pump breast milk for their nursing child. The law specifically states that employees are entitled to a place to pump at work, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.
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This space must also include a working electrical outlet and be reasonably close to the employee’s work location.
These protections under the PUMP Act are in effect for a period of one (1) year following a child’s birth. Some state laws offer a longer period of these protections, such as Colorado with a requirement of two (2) years, and New York with a requirement of three (3) years.
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Some state laws are more stringent regarding the actual space, for example New York, which requires the lactation space include a chair and small table or other flat surface, good lighting, an electrical outlet, and access to a clean water supply. New York employers must also allow employees to store expressed milk in the company refrigerator if one is present.
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Additionally, while the break time for expressing milk is unpaid under the PUMP Act, some states require these breaks be paid and do not allow for them to be taken in place of other mandated rest and meal periods.
Employees who feel their rights have been violated under the PUMP Act can make a complaint to the US Wage and Hour Division. States have their own complaint avenues for reporting employer violations.
The Various
Duties of
Exempt Employees
By: Sean Hansen, SHRM-CP
HR Compliance Coordinator
Effective July 1st, 2024, the Department of Labor (DOL) increased the federal exempt salary threshold from $35,568 per year ($684 per week), to $43,888 per year ($844 per week). In addition, they increased the highly compensated employee (HCE) total annual compensation threshold, from $107,432 per year to $132,964.
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Both of those numbers are set to increase again in 2025. These changes necessitated employers to take a second look at their exempt employees, to determine if that classification was needed.
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Compensation is only part of exemption status; the employee must also pass what is known as a ‘duties test’ to be considered exempt from overtime. What is involved in a duties test? Well, it depends.
A Quick Recap
We published an article that focused on the salary exempt threshold, and what is involved to pass the ‘salary test’ requirement of exempt status. You can find the full article here: LINK
What’s important to know is that in order to be exempt from overtime, an employee must pass the duties test, most of which also include a salary test. The other requirements depend entirely on the category of exemption; the FLSA provides exemptions for multiple categories of employees who can be exempt from overtime. Listed below are the different types of employees who may qualify for exemption, should they pass the duties tests:
Listed below are the different types of employees who may qualify for exemption, should they pass the duties tests:
Executive Employees
Professional Employees
Outside Sale Employees
Administrative Employees
Computer Employees
Highly Compensated Employees
There are also some types of employees who the exemptions do not apply to, and should always be compensated for overtime:
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Blue-Collar Workers (Electricians, Carpenters, etc.)
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Police Officers, Detectives, and other law enforcement
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Fire Fighters
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Paramedics, Emergency Medical Technicians, and other emergency medical personnel
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Other first responders
Acing the Duties Test
Executive Employees
The FLSA states that in order to qualify for this exemption, four (4) tests must be met:
COMPENSATION
The employee must be compensated on a salary basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
PRIMARY DUTY
The employee’s primary duty must be managing the enterprise: or managing a customarily recognized department/subdivision of the enterprise.
DIRECTION
The employee must customarily and regularly direct the work of at least two or more other full-time employees (or the equivalent of such an employee).
AUTHORITY
The employee must have the authority to hire/fire other employees, or at least their suggestions and recommendations to change the status of other employees must be given particular weight.
Vocabulary
Primary duty
Refers to the employee’s main and most important duty. How to determine what an employee’s primary duty is entirely on a case by case basis, but the FLSA emphasizes looking at ‘the character of the employee’s job as a whole’.
Customarily and regularly
The employee should be performing that task on a regular basis, but not necessarily constantly. The task should be done every workweek, but it cannot be an isolated or one-time task, or else it does not fulfill this definition.
Particular weight
This is a tricky one:
If the employee is not the one making employment decisions, their recommendation has to still be considered important. Determining particular weight should consider multiple factors, including:
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If it is part of the employee’s job to make these recommendations.
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The frequency in which the recommendations are made.
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How often the recommendations are requested or relied upon.
Even if a higher level manager’s recommendation has more importance, it does not preclude the employee’s recommendation from having particular weight.
Business Owners
It’s important to note that there is an exception to these duties. An employee who owns at least a bona fide 20 percent equity interest in the business that employees them, as long as they also engage in its management, would also be considered an exempt executive.
Administrative Employees
Three (3) tests must be met to qualify for this exemption:
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
PRIMARY DUTY
The employee’s 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.
PRIMARY DUTY (2)
The employee’s primary duty includes the exercise of discretion and independent judgement with respect to matters of significance.
Vocabulary
Discretion and Independent Judgement
The employee is authorized to make independent choices that are free from immediate supervision. Some factors to consider include, but are not limited to:
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Whether the employee is authorized to either formulate, affect, interpret, or implement management policies or operational practices.
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Whether the employee carries out major assignments in conducting the operations of the business.
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If the employee performs work that affects the business operations to a substantial degree.
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If the employee has authority to commit the employer to matters that have significant financial impact.
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Whether the employee has the ability to waive or deviate from policies or procedures without prior approval.
It does not matter if the employee’s decisions are revised or reversed after the fact; they would still be exercising discretion and independent judgement.
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Administrative Employees in Education
There is another avenue for an administrative exemption for those employed in an educational establishment. Employees who fulfill the following criteria are also eligible for the administrative exemption:
COMPENSATION
​The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
Alternatively, the employee can be compensated on a salary basis which is at least equal to the entrance salary for teachers in the same educational establishment.
PRIMARY DUTY
The employee’s primary duty must be the performance of administrative functions directly related to academic instruction or training in an education establishment.
Employees that would be considered as engaging in academic administrative functions include:
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The superintendent or other head of an elementary or secondary school system.
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Any assistants responsible for administrative of matters of curriculum, quality and methods of instructing, measuring and testing the learning potential/achievement of students, establishing and maintaining academic and grading standards, as well as other aspects of the teaching program.
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The principal and any vice-principals responsible for the operation of an elementary or secondary school
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Department heads in institutions of higher education responsible for the various subject matter departments.
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Academic counselors and other employees with similar responsibilities.
Professional Employees
While the professional exemption is its own category, the FLSA has two differing professional duties tests, depending on whether the employee is a learned professional or a creative professional.
Learned Professional
To qualify for this exemption, the employee must meet the following criteria:
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
PRIMARY DUTY
The employee’s 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 judgement.
KNOWLEDGE
The advanced knowledge must be in a field of science or learning and must be customarily acquired by a prolonged course of specialized intellectual instruction.
Vocabulary
A Field of Science or Learning
Is an occupation that has a recognized professional status, and is distinguishable from the mechanical arts or skilled trades. Examples of this include, but are not limited to, law, medicine, theology, or biological sciences.
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Customarily Acquired by a Prolonged Course of Specialized Intellectual Instruction
Generally means having the appropriate academic degree, but not all learned professionals require this. Learned professionals may have the same knowledge level and perform substantially the same work as degreed employees, but their advance knowledge was attained through the combination of work experience and intellectual instruction. This does not apply to occupations where employees acquire their skill by experience.
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Creative Professional
To qualify for this exemption, the employee must meet the following criteria:
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
PRIMARY DUTY
The employee’s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field or artistic or creative endeavor.
Vocabulary
Invention, Imagination, Originality, or Talent
Must be determined on a case-by-case basis. Generally, actors, writers, composers, or similar occupations may qualify for this exemption. Journalists can qualify if they satisfy the duties requirements, but not if they only collect, organize, and record information that is routine or already public, or they do not contribute a unique interpretation of a news product.
Teachers and Practitioners of Law or Medicine
A teacher whose primary duty is teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge in the fields of law and medicine would be considered an exempt professional. The salary and salary basis requirements of the professional exemption do not apply to these employees.
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Employees that hold a valid license/certificate permitting the practice of law or medicine would also be considered exempt professionals if they are actually engaged in such a practice. Similarly, an employee who holds the requisite academic degree for the general practice of medicine is exempt, as long as they are engaged in an internship or resident program for the profession. The salary and salary basis requirements of the professional exemption do not apply to these employees.
Computer Employees
To qualify for this exemption, the employee must meet the following criteria:
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
Alternatively, these employees can be compensated on an hourly basis, but at a rate not less than $27.63 an hour.
PRIMARY DUTY
The employee’s primary duty must consist of one of the following, or a combination of the following duties, the performance of which requires the same level of skills:
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The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
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The design, development, documentation, analysis, creation, testing or modification of computer systems or programs. This includes prototypes, based on and related to user or system design specifications.
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The design, documentation, testing, creation or modification of computer programs related to machine operating systems.
TITLE
The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties described below.
This exemption does not include:
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Employees that are engaged in manufacturing or repairing computer hardware or related equipment.
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Employees whose work is dependent or facility by the use of computer/computer software programs (such as engineers) but who are not primarily engaged in computer systems analysis and programming.
Outside Sales Employees
To qualify for this exemption, the employee must meet the criteria below:
Note: Unlike many other exemptions, outside sales employees are not subject to a salary test.
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
PRIMARY DUTY
The employee must be customarily and regularly engaged away from the employer’s place(s) of business.
Vocabulary
Away from the employer’s place(s) of business
The employee must be making sales at the customer’s place of business, or their home if selling door-to-door. Sales made by mail, telephone, or the internet are not considered outside sales, unless that contact is in addition to personal calls. In addition, if the salesperson uses their home or office to solicit customers, it would be considered one of the employer’s places of business.
Drivers that deliver, but also sell products may qualify as an outside sales employee, but only if they have a primary duty of making sales.
Highly Compensated Employees (HCEs)
To qualify for this exemption, the employee must meet the following criteria:
COMPENSATION
The employee must be compensated on a salary or fee basis at a rate not less than $844 per week, which translates to $43,888 per year. As of January 1st, 2025, this would change to $1,128 per week, or $58,656 per year.
Alternatively, these employees can be compensated on an hourly basis, but at a rate not less than $27.63 an hour.
PRIMARY DUTY
The employee’s primary duty must consist of one of the following, or a combination of the following duties, the performance of which requires the same level of skills:
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The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
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The design, development, documentation, analysis, creation, testing or modification of computer systems or programs. This includes prototypes, based on and related to user or system design specifications.
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The design, documentation, testing, creation or modification of computer programs related to machine operating systems.
TITLE
The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties described below.
That last requirement means that the employee must perform one of the duties we covered previously, as long as it is for an executive, administrative, or professional employee. For example, if an employee meets the first two (2) requirements, and their primary duty is managing an enterprise (as defined in the executive exemption), they would meet the requirements for a highly compensated employee.
In Summary
The Department of Labor (DOL) has published a fact sheet for the various duties tests, which can be found here.
When determining if a position qualifies for exempt status, employers should review the job descriptions they have on hand. If audited, there is a penalty for misclassifying an employee as exempt, but there is no penalty for erring on the side of caution and classifying an employee as non-exempt.
It is also important to note that several states have higher exempt salary threshold requirements, and some have more stringent duties test requirements. The more stringent rule must be applied.
It’s also important to remember that the employee’s salary alone doesn’t cut it. Even in the case of highly compensated employees, whose duties test is very contingent on specific salary requirements, has other criteria that must be met to be considered exempt.
If you are a Vida HR client and need immediate assistance with employment classifications, please reach out to your HR Business Partner for assistance.
EMPLOYEE HIGHLIGHT
EMPLOYEE HIGHLIGHT
EMPLOYEE HIGHLIGHT
Hello, I'm Shannon!
I began my career as a recruiter, learning the fundamentals of best hiring practices and process improvement. I then dedicated several years to employee engagement, change management, and client relations. Currently, I serve as an HR Business Partner at Vida HR, collaborating with talented professionals across several industries to translate organizational vision into achievable goals—a truly rewarding role.
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To further enhance the services provided to Vida HR's clients, I am now pursuing my Society for Human Resource Management (SHRM) Certification. With a proven track record of streamlining processes and fostering collaborative cultures, I'm excited to leverage my expertise to contribute to the continued growth and success of Vida HR.
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As an "Adapter" on the Predictive Index, I excel at bridge-building and navigating shifting circumstances. Like a chameleon, I possess a diverse behavioral repertoire that allows me to adapt well from one situation to the next. My key strengths include a keen eye for detail, collaboration, and a focus on continuous process improvement.
A little about me:
Born in Alaska and raised in Wyoming, my childhood was filled with adventure, colorful experiences, and an appreciation for the simple joys in life. Since 2005, Colorado Springs has been my home, providing me with ample opportunities to grow as a professional, raise a family, and enjoy living in the beautiful foothills of the Rockies.
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My home is built upon the foundations of faith and family, which I share with my beautiful daughters Mia (18) and Lacey (11), my husband Jesse, and our doodle Reeses. As a family, we are avid travelers, venturing to new destinations across the US and Mexico. At home, we are a lively bunch, tackling DIY projects and dancing in the kitchen. My favorite way to rejuvenate and maintain a healthy work-life balance is by setting aside time for self-care and meditation.