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What does "primary duty" mean according to the U.S. Department of Labor?
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.
Who makes the final determination on what an employee's primary duty is?
The Office of Human Resources (OHR) reviews each standard job description and makes the determination on the primary duty of the standard job description. The local Human Resource Division reviews position descriptions to see if the addition of unique responsibilities changes the primary duty of the position.
What is the Fair Labor Standards Act or FLSA?
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.
What kinds of jobs are exempt and nonexempt from FLSA reporting rules?
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 UW-Madison Office of Human Resources (OHR) 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.
How much is the minimum salary threshold?
The minimum salary threshold under the Fair Labor Standards Act is $684 a week or $35,568 per year. An employee paid above that salary can be designated as exempt from overtime requirements.
Whether or not you meet the salary threshold is determined by your actual earnings not by your annualized salary. If you have a full-time annual rate of $60,000 (which is above the minimum salary threshold of $35,568 but work a 0.50 appointment, your actual earnings are $30,000 which is below the new minimum salary threshold).
If an employee has more than one job, can they have more than one FLSA status designation?
No. Under the Fair Labor Standards Act (FLSA) all work done for the employer, UW–Madison, 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 (currently $684 per week or $35,568 annually), 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.
I am being told my FLSA status designation is changing. Can I opt out of this change?
No. UW–Madison designates employees as exempt or nonexempt in accordance with the guidelines established in federal law. It is not an employee choice.