Exempt vs. non-exempt employees

What the two categories mean under federal law, how the three tests work, and how to track time for each group without mistakes.

In shortNon-exempt employees are covered by the overtime rules of the Fair Labor Standards Act (FLSA) and must be paid at least time and a half for hours over 40 in a workweek. Exempt employees are not entitled to overtime, but only if they meet all three tests: they are paid a fixed salary, the salary is at or above the federal minimum level, and their main duties fit an exemption. A job title alone never makes someone exempt.

What the terms actually mean

“Exempt” and “non-exempt” describe whether an employee is exempt from the minimum wage and overtime requirements of the FLSA. Most US workers are non-exempt by default. An employer who wants to treat someone as exempt carries the burden of showing that the role qualifies, and the Department of Labor (DOL) and courts look at what the person really does every day, not at what the offer letter says.

It helps to separate two ideas that are often mixed up. Being salaried describes how someone is paid. Being exempt describes whether overtime rules apply. A salaried employee can still be non-exempt and owed overtime, while an hourly employee is almost always non-exempt. If you want a quick refresher on the pay side, see our glossary entry on wage vs. salary.

The three tests for an exemption

The most common exemptions are the so-called white-collar exemptions for executive, administrative and professional employees, plus related categories for outside sales and certain computer employees. For the white-collar group, an employee generally has to pass all three of the following tests.

  1. Salary basis test. The employee receives a predetermined, fixed salary each pay period that is not reduced because of the quality or quantity of work. Improper deductions, such as docking pay for a partial day, can put the exemption at risk.
  2. Salary level test. The salary is at or above the federal minimum. After court decisions set aside the 2024 increases, the DOL formally restored the earlier level in 2026: $684 per week ($35,568 per year), with a higher total compensation figure of $107,432 for the highly compensated employee test. Several states set higher thresholds, and the stricter rule wins.
  3. Duties test. The employee’s primary duty matches one of the exemptions, for example managing a department and directing at least two full-time employees, doing office work tied to running the business that involves real discretion, or work that requires advanced knowledge in a field of science or learning. Read more in our duties test glossary entry.

Some roles have their own rules. Outside sales employees, for example, are not subject to the salary tests, and certain professionals such as doctors, lawyers and teachers are treated differently. When a role sits near the line, it is worth asking a qualified employment attorney before deciding.

Side-by-side comparison

Exempt vs. non-exempt at a glance
Topic Non-exempt Exempt
Overtime under the FLSA Yes, at least 1.5x the regular rate for hours over 40 in a workweek No federal overtime requirement
Minimum wage Must receive at least the applicable minimum wage for all hours worked Covered by the salary level instead
How pay is set Usually hourly, sometimes salary plus overtime Fixed salary that meets the salary basis and level tests
Time records Employer must keep records of hours worked each day and week Hours are not required by the FLSA, though many employers still track attendance and leave
Typical roles Cashiers, line cooks, warehouse associates, technicians, many office assistants Qualifying managers, certain administrative and professional roles

State law can change this picture. Some states have their own overtime rules, daily overtime, higher salary levels or narrower duties tests, so always check the state where the employee works.

Common classification mistakes

Misclassification is one of the most frequent sources of wage claims, and it often happens with good intentions. These are the patterns to watch for:

If an employee who was treated as exempt is later found to be non-exempt, the employer may owe back overtime, and possibly additional damages. Because the risk builds over time, a periodic review of job descriptions against real duties is a sensible habit.

How to review your classifications

  1. List every role and the number of people in it, with current pay and pay frequency.
  2. For each role you treat as exempt, confirm the salary is at or above the federal level and any higher state level that applies.
  3. Write down what the person actually spends most of their time on. Ask the employee and their manager, and compare with the job description.
  4. Match those duties to a specific exemption. If you cannot name one, treat the role as non-exempt until you get advice.
  5. Record your reasoning and the date of the review so you can show how the decision was made.
  6. Repeat the review when duties change, when salary thresholds change and at least once a year.

Tracking time for each group

For non-exempt employees, accurate time records are not optional. The FLSA requires employers to keep records of hours worked each workday and workweek, along with pay information. Records also protect you if hours are ever disputed. A time clock that captures each clock-in, clock-out and break, and keeps a history of any edits, makes this much easier. Our guide to timekeeping best practices covers the details, and FLSA overtime rules explains how overtime is calculated.

For exempt employees, many businesses still track attendance, time off and project hours, for example to manage PTO balances or bill clients. That is allowed, as long as tracking does not lead to pay deductions that break the salary basis rule.

With EZTime’s time clock, employees can clock in from the mobile app, a shared kiosk or an NFC tag, and managers can see hours building up during the week. Overtime alerts help you spot a non-exempt employee approaching 40 hours before the week ends, and payroll-ready exports keep the numbers consistent with what your payroll provider needs.

A practical example

Imagine a small retail chain with a store lead at each location (a fictional example). The store leads are paid a salary above the federal level and are called “managers.” On review, the owner finds that at two stores the lead schedules and supervises a team of five, handles hiring and sets daily priorities. At a third, smaller store, the lead mostly runs the register and restocks shelves alongside one part-time colleague and has no real authority over staffing.

The first two roles may well qualify for the executive exemption. The third probably does not, despite the same title and the same salary. The safer choice is to treat that person as non-exempt, track their hours and pay overtime when it applies, or to change the role so it genuinely fits the exemption.

Frequently asked questions

Can a salaried employee be non-exempt?

Yes. Salary is a way of paying, not a classification. A salaried employee who does not meet all the exemption tests is non-exempt and is owed overtime for hours over 40 in a workweek under federal law.

What is the federal salary threshold for exempt employees?

As of 2026, the DOL has restored the $684 per week ($35,568 per year) level, with $107,432 for highly compensated employees. Some states set higher levels, and you must follow whichever is higher.

Do I need to track hours for exempt employees?

The FLSA does not require hour records for exempt employees, but many employers track attendance and time off anyway. Avoid using those records to make salary deductions that the rules do not allow.

Can an employee choose to be exempt?

No. Classification depends on pay and duties, not on preference or agreement. An employee cannot waive the right to overtime.

How often should I review classifications?

At least once a year, and whenever duties, pay or the legal thresholds change.

Where to go next

Related guides and tools

Labor rule alerts

Set overtime thresholds and weekly hour limits in EZTime and managers get an alert while there is still time to change the schedule.

Disclaimer: This guide is general information only and is not legal, payroll or tax advice. Federal, state and local rules vary and change over time, so check current requirements with the Department of Labor, your state labor agency or a qualified attorney or payroll professional before making decisions. Examples are fictional.