Must Exempts Do Exempt Work "Most" or "All" the Time?

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Exempt work has to be the primary duty of an exempt employee. The percentage of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement.

Time alone, however, is not the sole test, and there is no specific requirement that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties could still meet the primary duty requirement if other factors support such a conclusion.

Concurrent Exempt and Non Exempt Work

The concurrent performance of exempt and nonexempt work does not disqualify an employee from being classified as exempt. The regulations allow concurrent duties because, generally, exempt employees are able to make their own decisions regarding when to perform nonexempt duties, and they remain responsible for the success of failure of business operations under their management while performing the nonexempt work.

In contrast, the nonexempt employee is generally directed by a supervisor to perform the nonexempt work or performs the nonexempt work for defined time periods. For example, an exempt facilities manager will sweep the floor when he or she desires or needs to do so. A nonexempt maintenance employee, on the other hand, will sweep the floor at the order of the facilities manager.

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In addition, it is understood that exempt individuals may, as part of their jobs, perform certain nonexempt work that is “directly and closely related” to the performance of exempt work. In the regulations, this phrase refers to tasks that contribute to or facilitate the performance of exempt work, such as:

• Physical tasks and menial tasks that arise out of exempt duties. For example, a chemist performing menial tasks such as cleaning out a test tube in the middle of an original experiment, even though such menial tasks can be assigned to laboratory assistants, is still an exempt employee.
• Routine work without which the exempt employee’s exempt work cannot be performed. For example, writing up a new order, removing credit reports from the files for analysis, and writing letters to other employers or credit agencies giving credit data and experience.
• Monitoring and adjusting machinery. For example, a plant manager in a small factory sets up and calibrates the machines in order to ensure aquality product. While in a larger plant this routine work might be done by a nonexempt employee, in a small factory it is directly related to this person’s responsibility for the performance of subordinates and quality control.
• Taking notes. For example, a business consultant who takes and then types up notes from a site visit in order to analyze them is performing a menial task that is essential for completing the exempt job.
• Using the computer to create documents or presentations. For example, a district sales manager who creates a PowerPoint® presentation for the annual sales meeting is performing work related to her exempt responsibilities for meeting sales quotas.
• Using a photocopier or fax machine. For example, a teacher who photocopies tests for her students when the office assistant is unavailable is performing work directly and closely related to her job of teaching.

In addition, occasional, infrequently recurring tasks that cannot practicably be performed by nonexempt employees, but are the means for an exempt employee to properly carry out exempt functions and responsibilities, are considered exempt work. There are several factors to consider, including:

• Whether the same work is performed by any of the executive’s subordinates
• The practicability of delegating the work to a nonexempt employee
• Whether the executive performs the task frequently or occasionally
• The existence of an industry practice for the executive to perform the task

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The Emergency Exception

An exempt employee will not lose the exemption by performing work of a normally nonexempt nature because of an emergency. However, DOL takes the word “emergency” seriously and says the situation must be out of the employer’s control and must meet at least one of the following criteria:

• It would threaten the safety of employees, customers, or others in the workplace
• It would likely cause a cessation of operations, or
• It could cause serious damage to the employer’s property

In situations like these, work performed to prevent such results is considered exempt work. For example:

• A manager does nonexempt work to help out during a fire
• An exempt employee pitches in during an unexpected rush order
• An exempt employee replaces a nonexempt worker during the first day or partial day of an unexpected illness

In tomorrow’s Advisor, requirements of the Executive Exemption, and an introduction to a unique only-for smaller-HR-departments HR guide.