Professional Exemption

Executive Exemption // Administrative Exemption

PREVIOUS SHORT TEST

Salary level: $250 per week
Duties Test:
  1. primary duty is management of the enterprise or a recognized department or subdivision, and
  2. customarily and regularly directs the work of two or more other employees.

CURRENT TEST

Salary level: $455 per week
Duties test:
  1. primary duty is management of the enterprise in which the employee is recognized or of a customarily recognized department or subdivision,
  2. customarily and regularly directs the work of two or more other employees, and
  3. has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or other change of status of other employees are given particular weight.

DEFINITIONS

Primary
the principal, main, major or most important duty the employee performs. Consider the relative importance of the exempt duties as compared with other types of duties, the amount of time spent performing the exempt duties, 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 same types of non-exempt work. The amount of time spent performing non-exempt work can be a useful guide. Thus, employees who spend more than 50% of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing requires that exempt employees spend more than 50% of their time performing exempt work. Employees who do not spend more than 50% of their time performing exempt work may nonetheless meet the primary duty requirement based on the character of the job as a whole.


Management

includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production records; appraising employee productivity and efficiency; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among employees; planning and controlling the budget; and monitoring legal compliance. These functions are known as the “hire and fire” concept.


Department or subdivision

must have a permanent status and continuing function, not a mere collection of employees assigned from time to time to a specific job. A work shift can constitute a department or subdivision.


Supervises two or more employees

defined as two full time employees or their equivalent. Volunteers, contractors, inmates, and other non-employees may not be utilized to meet this test. Employees must actually be in an “at work status.” Employees on leave or vacant positions do not meet the “at work status” requirement. An employee who merely assists the manager of a particular department and supervises two or more employees only in the actual manager’s absence does not meet this requirement.


Particular weight

factors to be considered include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. This would not include an occasional suggestion with regard to the change in status of a co-worker. An employee’s suggestion or recommendation may still have "particular weight" even if the employee does not have authority to make the ultimate decision as to the employee’s change of status.


Concurrent duties

concurrent performance of exempt and non-exempt work does not disqualify an employee from the executive exemption if the other requirements of the executive test are satisfied. The previous 20% rule of performing non-exempt work under the short test has been eliminated. Generally, exempt employees make the decision regarding when to perform non-exempt duties and remain responsible for the success or failure of business operations under their management. In contrast, an employee whose primary duty is ordinary production work or routine, recurring or repetitive work cannot qualify for exemption as an executive. Non-exempt employees do not become exempt simply because they direct the work of other employees upon occasion or provide input on performance issues from time to time. Working foreman and team leads, who have some supervisory functions such as directing the work of other employees, do not meet the exemption criteria, as their primary duty consists of the same kind of work as that performed by other members of the work group or team.


Note: The State of Nebraska Classification & Pay Plan lists the general overtime designation (Exempt or Non-Exempt) for each class. However, this is only a general class guide. The actual overtime designation for a position must be individually determined by the duties and responsibility assigned to that position.