Publication

April 2007Newsletter

Wage and Hour Q & A

QUESTION: 

I would like to treat one of my employees as an exempt professional.  However, we do not pay him the required minimum salary of $455 per week because he is part-time.  We pay him a salary of $400 per week, but he typically only works 20 hours a week.  Can an employer “pro-rate” the $455 per week minimum salary requirement for part-time employees in order to qualify for the exemption? 

ANSWER: 

Unfortunately, no.  The FLSA’s Regulations provide that the $455 per week is a minimum salary requirement in order to qualify as an exempt professional.  29 C.F.R. §541.600.  The Department of Labor’s Preamble accompanying the regulations states that:

“We also considered but rejected comments requesting a special rule for part-time employees.  The Regulations have never included a different salary level for part-time employees, and such a rule appears unnecessary.”

Id.  Thus, the $455/week minimum salary cannot be pro-rated for part-time employees.

For more information, please contact Mitchell W. Quick, a partner in Michael Best's Labor and Employment Relations Practice Group at 414.225.2755, or by e-mail at mwquick@michaelbest.com.
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