Notice: The U.S. Department of Labor has increased the salary threshold for the Fair Labor Standards Act to $1,128 per week ($58,656 per year) for a full-year worker. The new rules go into effect January 1, 2025. Employees who are impacted by this change will be contacted directly and provided with additional information in the coming months.
The term “primary duty” is the principal, main, major, or most important duty that an employee performs. Determination of an employee’s primary duty must be based on all the facts in each case with the main emphasis on the character of the employee’s entire job.
Factors considered when determining the primary duty of an employee include but are not limited to:
- The relative importance of the major or most important duty as compared with other types of duties.
- The amount of time spent performing the major or most important duty.
- The employee’s relative freedom from direct supervision.
- The relationship between the employee’s salary and the wages paid to other employees for performance of similar work.
- The amount of time spent performing the specific duty.
Note: Employees who spend more than 50 percent of their time performing a specific duty will generally, although not always, satisfy the primary duty requirement. In contrast, employees who do not spend more than 50 percent of their time performing a specific duty may meet the primary duty requirement if the other factors (listed above) support such a determination.
Universities of Wisconsin Office of Human Resources reviews each standard job description and makes the determination on the primary duty of the standard job description.
The Fair Labor Standards Act (FLSA) is a federal law that establishes labor standards for public and private sector employers. The law defines a standard work week, establishes a national minimum wage, and establishes parameters for working minors. In addition, the law guarantees overtime for certain positions.
The FLSA provides a set of standards to determine which jobs are covered by the act (non-exempt) and which jobs are not covered (exempt). Non-exempt positions are considered hourly positions and must receive overtime pay or compensatory time for hours worked over 40 in a workweek. Exempt positions are considered salaried positions and do not normally receive additional compensation for overtime work. For more information on FLSA please refer to the US Department of Labor website.
If an employee’s duties and pay change, or if the regulations are updated, that person’s FLSA status may change from exempt to non-exempt or from non-exempt to exempt.
To qualify as exempt from FLSA reporting, an employee must satisfy the following tests:
- Have a salary above the minimum salary threshold
- Be paid on a salary (not hourly) basis
- Perform duties that qualify for an exemption. Exempt jobs in this test include executive, administrative, and computer professional employees.
Teachers, lawyers, and doctors as defined by the FLSA and confirmed by the Universities of Wisconsin Office of Human Resources are also exempt from the FLSA. This includes faculty and instructional academic staff whose primary duties are teaching. Those who support teaching activities without actual teaching interaction are subject to the Fair Labor Standards Act.
Effective January 1, 2025, the minimum salary threshold under the Fair Labor Standards Act is $1,128 per week. An employee paid above that weekly rate can be designated as exempt from overtime requirements. Whether or not an employee meets the salary threshold is determined by their actual earnings, not by annualized base salary.
- If you have an employee with a full-time annual comp rate of $1,154/week ($60,008 annual) but they work a 0.50 appointment, the actual earnings are $577/week ($30,004 annual), which is below the new weekly minimum salary threshold. This employee would be nonexempt because they do not meet the weekly minimum salary threshold.
- If you have a full-time employee (A-basis) on a 10-month fiscal year contract (with a 2-month short work break during the summer) making $1,154/week ($60,008 full-time annual comp rate), they are actually earning $1,154/week for the weeks they are working. This employee would remain exempt because they meet the weekly minimum salary threshold.
Generally, No. Under the Fair Labor Standards Act (FLSA) all work done for the employer, the Universities of Wisconsin, is taken into account to determine whether an employee is exempt or nonexempt.
For example: An employee whose total salary is below the minimum salary threshold (effective January 1, 2025 of $1,128 per week), holds a part-time instructional academic staff position as a lecturer (exempt). The employee also holds a part-time position as an hourly (nonexempt) recreational specialist.
If the employee’s primary duty (or the principal, main, major, or most important duty that the employee performs) is teaching as a lecturer, then the employee’s designation is exempt because teaching is the employee’s primary duty, and the employee qualifies for the teacher exemption in the FLSA guidelines regardless of salary.
If the primary duty (or the principal, main, major, or most important duty that the employee performs) is determined to be a recreational specialist, however, the FLSA designation will be nonexempt because the employee (in this example) would not meet the requirements for exemption according to FLSA guidelines.
No. Universities of Wisconsin Office of Human Resources designates employees as exempt or nonexempt in accordance with the guidelines established in federal law. It is not an employee choice.
More Frequently Asked Questions About Exempt to Non-Exempt Changes Due to Salary
Exempt (salary) employees are not required to report their time worked. They are required to report leave usage.
Nonexempt (hourly) employees must account for time worked rather than accounting for leave used. All time worked must be reported. Leave time must be reported in 15-minute increments.
Overtime must be preapproved and is at the discretion of the university and supervisor. An employee must get prior approval to work overtime, according to procedures/policies set by the university and supervisor.
Perhaps. A non-exempt employee may modify their normal work schedule if they have pre-approval from their supervisor. Non-exempt employees need to record all time worked.
Yes. Nonexempt (hourly) employees must account for the travel time and for the hours of conference attendance, but there is no prohibition on traveling or professional development.
Checking messages after normal work hours is considered work time. Nonexempt employees must record all time worked. Checking messages outside of normal work hours should be preapproved by an employee’s supervisor.
This is considered “volunteering” and Regulations 29 C.F.R. §553.103 states employees of public employers can volunteer their services provided “such services are not the same type of services which the individual is employed to perform for such public agency.” Whether volunteering is not of the same type of services the individual is employed to perform depends not only what the written job duties of an employee are, but also the duties and responsibilities that are actually assigned to the employee. Performing the same/similar job duties as the position you are hired to perform without receiving compensation is not allowed. Thus, when permitting an employee to volunteer, it is best practice to place them in a volunteer role that is as separate and distinct as possible from his/her written, as well as actual, job duties.
No. Academic Staff who are designated as nonexempt (hourly) will remain Academic Staff.
Maybe. Every position is evaluated for status under the Fair Labor Standards Act (FLSA) to see if it exempt or nonexempt based on the guidelines. If you change jobs, your FLSA exemption status may change based on the exemption status associated with the new position.
No, nonexempt Academic Staff and graduate assistants are not eligible for night differential pay or weekend differential pay.
No. Nonexempt employees must report all actual hours worked each workweek and are expected to work the number of hours each workweek associated with their FTE (e.g. 50% FTE works 20 hours/week). A nonexempt employee cannot choose to record only some selected hours worked. All hours worked in the workweek must be reported, regardless of the effect on overtime.
A nonexempt employee is expected to supplement leave time when they do not work the hours associated with their FTE within a defined workweek. With supervisory approval, employees can fluctuate the days of work or times of work within the same workweek in order to accommodate time off.
No. Academic Staff who are designated as nonexempt cannot convert to University Staff.
No, A-Basis nonexempt academic staff are not eligible for holiday premium pay. If they work on the legal holiday, the legal holiday hours not used will be retained in their leave bank.