January 2008Newsletter

Wage and Hour Q & A


Does the Fair Labor Standards Act (“FLSA”) have a minimum compensation level at which an employee is exempt from overtime pay despite not performing all of the exempt duties of a particular exemption?


Yes. The FLSA has a “highly compensated employee” exemption. Under that exemption, any employee who earns at least $100,000 in annual compensation and “customarily and regularly performs” at least one of the exempt duties of an exempt professional, administrative, or executive employee, is exempt from the overtime obligations of the FLSA. See 29 C.F.R. § 541.601. Such compensation on an annual basis can include commissions and non-discretionary bonuses, but must also include a salary of at least $455/week. The rationales behind the exemption are that: (1) if the employer is paying an employee that much money, then the employee must be performing tasks of significance; and (2) the employee will be adequately compensated even if the employee works well over 40 hours in a week.

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

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