Fair Labor Standards Act Exemptions - Minimum Wage And Overtime

Most employers must pay the majority of their employees minimum wage and overtime pursuant to the Fair Labor Standards Act (FLSA). However, there are some categories of employees that qualify for Fair Labor Standards Act exemptions. Section 213(a) of the Fair Labor Standards Act provides for several exemptions from both its minimum wage and overtime requirements. 29 USC 213(a); 29 CFR 541 (See also Overtime only exemptions) Each exemption has its own requirements that must be met for an employee to qualify.

The most common categories of employees that qualify for the Fair Labor Standards Act exemptions for both minimum wage and overtime requirements include:

Most Common Exemptions

Amusement and recreational establishment exemption

An employee of an amusement or recreational establishment, an organized camp, or a religious or non-profit educational conference center may be exempt if:

the establishment, camp, or educational conference center does not operate for more than seven months in a calendar year, or
in the preceding calendar year, have average receipts for any six months that were not more than 33⅓ percent of its average receipts for the other six months of such year, except in situations where the employer is a private entity that provides services or facilities, except those directly related to skiing, in a national park, national forest, any land in the National Wildlife Refuge System, under contract with the Secretary of Interior or the Secretary of Agriculture.
29 USC § 213(a)(3)

Fishing operation exemption

An employee is exempt who:

catches, takes, propagates, harvests, cultivates, or farms any kind of fish, shellfish, crustacean, sponges, seaweeds, or other aquatic animals and vegetable life, or
processes, cans, or packs marine animals or vegetable life while at sea in conjunction with or as an incidental part of the fishing operations.

This exemption applies to the time spent by the employee going to and returning from work and any loading and unloading related to the fishing operation.
29 USC § 213(a)(5)

Agricultural employee exemption

An employee employed in agriculture may be exempt:

if the employee works for an employer who did not use more than the equivalent of five hundred (500) work days of labor during any calendar quarter of the preceding calendar year;
if the employee is the parent, spouse, child, or other member of the employer’s immediate family;
if the employee:
- is paid on a piece rate basis,
- works as a hand harvest laborer for an operation that is recognized as having historically paid hand harvest laborers on a piece rate basis in the region of employment,
- does not reside at the farm but instead commutes daily to the farm where work is performed, and
- has worked in agriculture less than thirteen (13) weeks during the preceding calendar year;
if the employee:
- is sixteen (16) years of age or younger
- is paid on a piece rate basis,
- works as a hand harvest laborer for an operation that is recognized as having historically paid hand harvest laborers on a piece rate basis in the region of employment,
- works on the same farm as his parents or person standing in the place of his/her parent, and
- is paid at the same piece rate as employees working on the same farm who are over sixteen (16) years of age.
if the employee works primarily in the range production of livestock.

29 USC § 213(a)(6)

Special certificate exemption

An employee that is exempted by regulations, order, or certificate of the Secretary of Labor issued under Section 214 of the FLSA. 29 USC § 213(a)(7)

Small newspaper employee exemption

An employee who works in connection with the publication of a daily, semiweekly, or weekly newspaper that has a circulation of less than four thousand (400) and where the major portion of the circulation is in the county where the newspaper is published or neighboring counties may be exempt. 29 USC § 213(a)(8) The DOL takes the position that employees may still qualify for this exemption if they perform job printing activities that are covered by the FLSA, if the job printing activities make up less than 50 percent of their total hours worked. If the job printing activities are not covered by the FLSA, employees may qualify for this exemption even if they perform job printing activities more than 50 percent of the time. 29 CFR 786.250

Switchboard operator exemption

An employee who works as a switchboard operator for an independently owned public telephone company with no more than seven hundred and fifty (750) stations may be exempt. 29 USC § 213(a)(10) An employee may still qualify for the switchboard exemption if they perform non-switchboard work, so long as the amount of time spent on that work is insignificant. The DOL has determined that the amount of time is insignificant if it constitutes 20 percent or less of the total amount of time worked by the employee. 29 CFR 786.100

Seaman Exemption

An employee who works as a seaman on a non-American vessel may be exempt. 29 USC § 213(a)(12) Visit our Seaman page to learn more about this exemption.

A seaman is defined as someone who:

works on a vessel;
is a master or subject to the authority, direction, and control of the master;
works primarily as an aid in the operation of the vessel
performs no substantial amount of work of a different character

29 CFR 783.31 See also Sternberg Dredging Co. v. Walling, 158 F. 2d 678 (8th Cir. 1946); Walling v. Haden, 153 F. 2d 196 (5th Cir. 1946), certiorari denied 328 U.S. 866; Walling v. Great Lakes Dredge & Dock Co., 149 F. 2d 9 (7th Cir. 1945), certiorari denied 327 U.S. 722; Douglas v. Dixie Sand and Gravel Co., (E.D. Tenn.) 9 WH Cases 285)

Seamen include crew members such as sailors, engineers, radio operators, firemen, pursers, surgeons, cooks, and steward if they meet the criteria set forth above. Employees do not lose their status as seamen just because they perform an insubstantial amount of work that is not associated with the operation of a vessel. An example of such work is the loading and unloading of freight at the beginning or end of a voyage. 29 CFR 783.32

Babysitter exemption

An employee may be exempt who provides babysitting on a casual basis. 29 USC § 213(a)(15)

Domestic service employees companionship services exemption

The Fair Labor Standards Act exempts from its minimum wage and overtime requirements domestic service employee who provides companionship services to an individual who is unable to care for themselves due to age or infirmity. 29 USC § 213(a)(15) For more information, visit our Domestic Service Employee Companionship Services Exemption page.

Criminal investigator exemptions

An employee who works as a criminal investigator and is paid availability pay may be exempt.29 USC § 213(a)(16)

Combination Exemption

Employees who perform a combination of exempt duties, whether under the executive, administrative, professional, outside sales, and/or computer employees exemptions, may still qualify for an exemption. Performing work that is exempt under one exemption will not defeat the exemption under another section. 29 CFR 541.708.

Trainees

Employees who are training for positions that qualify for exemption under the executive, administrative, professional, outside sales, or computer employee exemptions are not deemed to be performing exempt work. Thus, they cannot be treated as exempt employees. 29 CFR 541.705.