What is the difference between exempt and non-exempt employees?

Non-exempt employees must be paid overtime for hours over 40 in a workweek. Exempt employees are not owed overtime, but only if they meet specific salary and duties tests. The classification changes how you pay, track and deduct.

In shortUnder the Fair Labor Standards Act, every employee is non-exempt by default, which means they are owed at least minimum wage and overtime at one and a half times their regular rate for hours over 40 in a workweek. An employee becomes exempt from overtime only by meeting an exemption, most often the white-collar exemptions, which require a salary of at least the federal level (the DOL lists the standard level as $684 per week, and some states set it higher), payment on a salary basis, and passing the duties test for executive, administrative or professional work. Being paid a salary does not make someone exempt, and being paid hourly almost always means non-exempt. The classification also changes everyday practice: for exempt employees, the salary basis rules limit deductions from pay, while non-exempt employees need accurate records of hours worked every day.

What changes with the classification

Exempt and non-exempt in practice
Topic Non-exempt Exempt
Overtime over 40 hours Required Not required
Pay structure Hourly or salary Salary of at least the required level
Tracking hours Required for pay Often tracked for scheduling, not for overtime
Pay deductions for partial days Pay only for hours worked Generally not allowed; full-day absences for personal reasons are an exception
Short week due to lack of work Pay for hours worked Full salary for any week with work performed

Deduction rules for exempt staff have several specific exceptions. Check them before docking any salary.

Salaried coordinator, 48-hour weekSalary, 40 h$1,000Overtime, 8 h+$3008 h x $37.50 = $300 a week once non-exempt
A salary does not remove overtime when the duties test fails.

Worked example: a coordinator who works 48 hours

Salaried is not the same as exempt

A logistics company pays its dispatch coordinator a salary of $1,000 a week and has treated the role as exempt. She regularly works 48 hours. Her work is following set routing rules and entering loads; route decisions are made by the operations manager.

She meets the salary level, but her work does not involve discretion and independent judgment on matters of significance, so she does not pass the administrative duties test. She is non-exempt.

If her $1,000 salary is meant to cover 40 hours, her regular rate is $25 an hour, so 8 overtime hours at $37.50 add $300 a week. The company reclassifies the role, starts tracking her time, and either pays the overtime or limits the hours. It also reviews the other salaried roles in the same office.

Mistakes that are specific to exempt and non-exempt classification

Reviewing classifications each year

Classifications drift. A role that was mostly managing can become mostly hands-on after staffing changes, and salary levels change with state rules. Once a year, list every exempt employee with their salary, their main duties as they are now and the exemption relied on, and check each against current federal and state rules.

When a role no longer qualifies, change it going forward, tell the employee in writing what changes, and start recording hours. Get advice on any back pay question before the change, rather than after.

Second example: a role that changed

A restaurant’s assistant manager has been exempt for years. After two cooks leave, she spends most shifts on the line and rarely directs anyone.

In the yearly review, the owner notices the change in duties and reclassifies the role as non-exempt hourly at an equivalent rate, with overtime over 40 hours, until the kitchen is fully staffed. When new cooks are hired and she returns to mostly managing, the role is reviewed again. Each decision and its reason are written down in her file, so the history of the role is clear to anyone who checks later.

Track hours for everyone on salary for one monthBefore deciding a salaried role is exempt, track the real hours for a month. If it is non-exempt, you will know the overtime cost. If it is exempt, you will know whether the workload is sustainable.

Questions people ask

What does non-exempt mean?

A non-exempt employee is covered by the FLSA’s minimum wage and overtime rules and must be paid overtime for hours over 40 in a workweek.

Can a salaried employee be non-exempt?

Yes. A salaried employee who does not meet an exemption is non-exempt and owed overtime.

What is the salary threshold for exempt employees?

The DOL lists the standard level as $684 per week, or $35,568 a year. Some states set a higher level.

Can you deduct pay from an exempt employee?

Only in limited situations, such as full-day absences for personal reasons. Partial-day deductions generally are not allowed.

Who decides whether an employee is exempt?

The employer classifies, but the classification must meet the legal tests. The job title alone does not decide it.

Should exempt employees track their hours?

Not for overtime, but many employers track them for scheduling, workload or state rules.

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Disclaimer: This explanation of exempt vs. non-exempt is general information, not legal, payroll or tax advice; rules differ by state and city and change over time, and the examples are fictional.