FLSA exempt status as a W-2 hourly employee

UPDATED: Sep 30, 2022

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FLSA exempt status as a W-2 hourly employee

When an individual falls into the Highly Compensated Employee Status does the salary test still apply? And if so would it negate the exempt status. For example if the employment contract states that

Asked on March 20, 2017 under Employment Labor Law, District of Columbia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The employee's total compensation needs to meet the threshhold as the primary criteria. A secondary criteria is that $455/week must be paid on a salaried basis. That means that $455/week must be paid regardless of client approval or feedback, number of hours worked, etc.--it has to be paid no matter what, with the sole caveat that if a salaried employee misses an entire day (not part of a day; a whole day) of work without using PTO for it, he/she does not have to be paid for that day, and not paying him/her for a missed day does not alter his/her salaried status. But apart from that one caveat, at least $455/week would have to be guaranteed regardless of hours, performance, client approval; if not, then the employee would not meet the criteria to be ovetime exampt as a highly compensated employee.

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