FLSA Exemption Questionnaire – NYS

Note to employers: This questionnaire serves as a basic outline for an employer’s initial analysis of positions being considered for exemption under the FLSA and is meant to serve as one of several tools in such an analysis. Job titles are insufficient to determine exempt status. Additionally, state wage and hour laws may have different requirements.

Position Title: __________________________________

Employee: ____________________________________

Date: _________________________________________

Completed by: _________________________________

Completion of this questionnaire helps determine the exemption status of a position. Check the appropriate exemption (executive, administrative, professional, computer-related, outside sales or highly compensated), then check all boxes under the selected exemption that are applicable. To qualify for an exemption, all boxes must be checked for that exemption.

EXECUTIVE (examples: chief executive officer, controller, vice president, director)

• Regularly receives a predetermined amount of pay constituting all or part of the employee’s salary, which is not subject to reduction because of variations in the DOL’s quality or quantity of work performed.
• Is paid at least $885 weekly (effective Jan. 1, 2020).
• Primary duty consists of managing the enterprise or a customarily recognized department or subdivision of the enterprise.
• Customarily and regularly directs the work of two or more full-time employees or their equivalents (for example, one full-time employee and two half-time employees).
• Has the authority to hire or fire other employees OR makes recommendations that carry weight as to the hiring, firing, advancement, promotion or any other change in status of other employees.

ADMINISTRATIVE (examples: manager, supervisor, administrator)

• Regularly receives a predetermined amount of pay constituting all or part of the employee’s salary, which is not subject to reduction because of variations in the quality or quantity of work performed.
• Is paid at least $885 weekly (effective Jan. 1, 2020).
• Primary duty consists of performing office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers.
• Work includes the exercise of discretion and independent judgment with respect to matters of significance.

PROFESSIONAL: LEARNED AND CREATIVE (examples: accountant, nurse, engineer, composer, singer, graphic designer)

• Regularly receives a predetermined amount of pay constituting all or part of the employee’s salary, which is not subject to reduction because of variations in the quality or quantity of work performed.
• Is paid at least $885 weekly (effective Jan. 1, 2020). Note: For teachers, licensed or certified practitioners of law and medicine, and medical interns and residents covered under this exemption, the salary basis and salary requirements do NOT apply.

Learned Professional

• Primary duty consists of the performance of work that requires advanced knowledge (beyond high school) and that is predominantly intellectual in character and consistently includes the exercise of discretion and independent judgment.
• The advanced knowledge is in a field of science or learning.
• The advanced knowledge was acquired by a prolonged course of specialized intellectual instruction. (This knowledge may be demonstrated either by possessing the appropriate academic degree or by having substantially the same knowledge level and performing substantially the same work as degreed employees but possessing advanced knowledge only through a combination of work experience and intellectual instruction.)

Creative Professional

• Primary duty consists of the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.

COMPUTER-RELATED (examples: network or database analyst, developer, programmer, software engineer)

• Is paid at least $885 weekly (effective Jan. 1, 2020) OR $27.63 per hour. That is, this exemption does NOT have to meet the salary basis requirement to regularly receive a predetermined amount of pay constituting all or part of the employee’s salary, which is not subject to reduction because of variations in the quality or quantity of work performed, IF paid at least $27.63 on an hourly basis.
• Primary duty consists of:
• The application of system-analyst techniques and procedures, including consulting with users to determine hardware, software or systems functional specifications, OR
• The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, OR
• The design, documentation, testing, creation or modification of computer programs related to machine-operating systems, OR
• A combination of these duties which requires the same level of skills.

OUTSIDE SALES (examples: salespeople, contract negotiators)

• The salary basis and salary requirements do NOT apply for this exemption. That is, this exemption does NOT have the salary basis requirement to regularly receive a predetermined amount of pay constituting all or part of the employee’s salary, AND this exemption does NOT require payment of a minimum salary. Commission-only pay is allowable under this exemption.
• Primary duty consists of making sales or obtaining orders for contracts for services, or for the use of facilities for which consideration will be paid by the client or customer.
• Customarily and regularly is engaged away from the employer’s place or places of business.

HIGHLY COMPENSATED EMPLOYEES PERFORMING EXECUTIVE,
PROFESSIONAL OR ADMINISTRATIVE DUTIES

• Is paid an annual total compensation of $107,432 or more, which includes at least $885 per week paid on a salary basis (effective January 1, 2020). The required total annual compensation of $107,432 or more may consist of commissions, nondiscretionary bonuses and other nondiscretionary compensation earned during a 52-week period, but does not include credit for board or lodging, payments for medical or life insurance, or contributions to retirement plans or other fringe benefits.
• Primary duty consists of performing nonmanual office work. Note: No matter how highly paid, manual workers or other blue-collar workers, including non-management construction workers, who perform work involving repetitive operations with their hands, physical skill and energy are not eligible for this exemption.
• Customarily and regularly performs at least one of the exempt duties or responsibilities of the executive, professional or administrative exemption.

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