FLSA white-collar (EAP) overtime exemption
Sections 206 and 207 do not apply to "any employee employed in a bona fide executive, administrative, or professional capacity," as defined by DOL regulations 29 U.S.C. § 213(a)(1)1. Three tests generally apply: duties, salary basis, and salary level. The salary level currently enforced is "not less than $684 per week" ($35,568 a year). 29 C.F.R. § 541.600(a)2
- $684/week is the operative threshold — The 2024 rule ($844, then $1,128) was vacated by two Texas federal courts in late 2024, and the appeals were dismissed in May 2026. DOL's May 15, 2026 technical amendment restored the 2019 text: "the operative version of the Department’s part 541 regulations is the version of these regulations that was in place on June 30, 2024, prior to the effective date of the 2024 rule, and which the Department has been enforcing." U.S. Dep't of Labor, Final Rule; Technical Amendment, Implementation of Federal Court Judgments, FR Doc. 2026-09839 (May 15, 2026)3
- Highly compensated employees — An employee "with total annual compensation of at least $107,432" is exempt if he or she "customarily and regularly performs any one or more of the exempt duties or responsibilities" of an EAP employee. At least $684 a week of that must be paid on a salary or fee basis. 29 C.F.R. § 541.601(a)4; FR Doc. 2026-098393
- Executive duties — Primary duty of management; "customarily and regularly directs the work of two or more other employees"; and hire/fire authority or recommendations that "are given particular weight." 29 C.F.R. § 541.100(a)5
- Administrative duties — The primary duty is "office or non-manual work directly related to the management or general business operations of the employer or the employer's customers," and it includes "the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200(a)6
- Professional duties — Work "requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction," or creative work. 29 C.F.R. § 541.300(a)7
- Salary basis — A predetermined amount "not subject to reduction because of variations in the quality or quantity of the work performed." Computer employees may instead earn $27.63 an hour; teachers are exempt from the salary tests. 29 C.F.R. § 541.602(a)8; 29 C.F.R. § 541.400(b)9; 29 C.F.R. § 541.303(d)10
Practice notes
- The employer must prove the exemption by a preponderance of the evidence, not by clear and convincing evidence. E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45 (2025)11
- No narrow construction: "We thus have no license to give the exemption anything but a fair reading." Encino Motorcars, LLC v. Navarro, 584 U.S. 79 (2018)12