Employment and Labor Laws

Fair Labor Standards Act

Exemptions

Customarily and Regularly

For purposes of the executive employee exemption under the Fair Labor Standards Act (FLSA),”customarily and regularly” means supervisors direct the work of two or more full-time employees or their equivalent on a normal and reoccurring basis as opposed to an isolate or intermittent basis. 29 CFR 541.701

The regulations do not provide any further guidance regarding what “customarily and regularly” means in actual practice. Court decisions provide some guidance:

To determine the amount of time an employee directed the work of two or more full-time employees or their equivalent, the courts typically analyzed payroll records from an extended period of time to determine the percentage of the workweeks the employees in question met the 80-hour rule.


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