Primary Duty – FLSA Exemptions

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“Primary duty” for purposes of Fair Labor Standards Act (FLSA) exemptions means “the principal, main, major or most important duty that the employee performs.” Factors considered in determining if an employee’s exempt duties are his or her principal duties include:

  • the relative importance of the exempt duties in relation to the non-exempt duties;
  • the amount of time spent by the employee performing exempt work;
  • the relative freedom the employee has to perform his duties without direct supervision;
  • the relative difference between the employee’s salary and the wages paid to other employees for the performance of non-exempt work.

29 CFR 541.700(a)

Employees who spend more than 50 percent of their time performing exempt duties typically satisfy the primary duty requirement. However, exempt work can still be an employee’s primary duty even if the work is performed less than 50 percent of their time, so long as other factor support the conclusion. 29 CFR 541.700(b)

An example of when an employee performs exempt work less than 50 percent of the time but may still have exempt work considered their primary duty is an assistant managers in a grocery store. The assistant manager may spend more than 50 percent of his or her time working as a cashier, but is also responsible for supervising and directing the work of other employees as well as other managerial duties. In this case, the fact that the assistant manager does not perform exempt duties more than 50 percent of the time may not preclude the determination that those exempt duties are his or her primary duties. Other factors, such as limited supervision from higher level managers and a notable difference in pay from employees performing the same non-exempt work, may support the primary duty conclusion. 29 CFR 541.700(c)

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