Yes, salaried employees can be non-exempt and entitled to overtime. A salary is a method of payment, not a legal classification. Under the Fair Labor Standards Act, whether you get overtime depends on how much you earn and what you actually do each day. If your pay or your duties fall short of the exemption tests, your employer owes you time-and-a-half for every hour over 40 in a workweek, salary or not.1Office of the Law Revision Counsel. 29 USC 207 – Maximum Hours
Why a Salary Alone Doesn’t Make You Exempt
The most common employer mistake is assuming that putting someone on salary automatically ends the overtime question. It doesn’t. Three separate tests must all be satisfied before an employee is exempt from overtime: the salary basis test, the salary level test, and the duties test.2U.S. Department of Labor. Fact Sheet 17A – Exemption for Executive, Administrative, Professional, Computer and Outside Sales Employees Under the Fair Labor Standards Act Fail any one of them and you’re non-exempt. Job titles carry no weight in the analysis.
The salary basis test asks whether you receive a fixed, predetermined amount each pay period that doesn’t fluctuate based on how many hours you put in or how well you perform. An exempt employee must receive their full salary for any week in which they perform any work.3U.S. Department of Labor. Fact Sheet 17G – Salary Basis Requirement and the Part 541 Exemptions Under the Fair Labor Standards Act If your employer docks your pay because you left two hours early on a Tuesday, that kind of variation can undermine exempt status.
The Salary Level Floor
To even be considered for exemption, you must earn at least $684 per week, or $35,568 per year. Earn less than that on a salary basis and you’re non-exempt regardless of your duties or title.4U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption From Minimum Wage and Overtime Protections Under the FLSA
The Department of Labor tried to raise this threshold in 2024, but a federal court in Texas vacated the new rule. The $684 weekly figure from the 2019 regulation remains the enforceable federal standard.4U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption From Minimum Wage and Overtime Protections Under the FLSA Several states set higher thresholds, so your state’s minimum may exceed the federal number. As of 2026, at least five states require a higher salary before an employee can be classified as exempt.
The Duties That Actually Qualify as Exempt
Most exemption disputes turn on duties. Even if you earn well above $684 a week, your primary work has to fit squarely into one of the recognized exempt categories. The test looks at what you actually do day to day, not what your job description says.2U.S. Department of Labor. Fact Sheet 17A – Exemption for Executive, Administrative, Professional, Computer and Outside Sales Employees Under the Fair Labor Standards Act
The executive exemption applies when your main job is managing the business or a recognized department, you regularly direct the work of at least two full-time employees, and you have real authority (or real influence) over hiring and firing.5eCFR. 29 CFR Part 541 – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Computer and Outside Sales Employees
The administrative exemption is the most litigated because its language is genuinely hard to pin down. It requires office or non-manual work directly tied to business operations or management, plus the exercise of independent judgment on significant matters. An administrative assistant who follows detailed procedures doesn’t qualify, even though the title contains the word “administrative.”
The learned professional exemption covers work requiring advanced knowledge in a field of science or learning, typically gained through a prolonged course of specialized study. Doctors, lawyers, engineers, and accountants are classic examples. The creative professional exemption covers work requiring invention, imagination, or talent in a recognized artistic field.
The computer employee exemption is unusual. Systems analysts, programmers, and software engineers can qualify either on a salary basis at $684 per week or on an hourly basis at not less than $27.63 per hour.6U.S. Department of Labor. Fact Sheet 17E – Exemption for Employees in Computer-Related Occupations Under the Fair Labor Standards Act No other exemption offers an hourly path.
The outside sales exemption applies when your primary duty is making sales away from the employer’s place of business. Outside sales employees have no minimum salary requirement at all.
Workers Who Are Always Non-Exempt
Some employees can never be classified as exempt, no matter how much they earn on salary. Blue-collar and manual laborers—carpenters, electricians, mechanics, plumbers, construction workers, and similar tradespeople—are always entitled to overtime under the FLSA. They cannot be exempt under the executive, administrative, or professional categories even if they earn six figures.7U.S. Department of Labor. Fact Sheet 17I – Blue-Collar Workers and the Part 541 Exemptions Under the Fair Labor Standards Act
First responders are also always non-exempt. Police officers, firefighters, paramedics, EMTs, and correctional officers generally don’t qualify under any of the white-collar exemptions because their primary duties involve fieldwork and emergency response rather than management or advanced academic knowledge.8U.S. Department of Labor. Fact Sheet 17J – First Responders and the Part 541 Exemptions Under the Fair Labor Standards Act A specialized academic degree isn’t a standard prerequisite for these professions, which disqualifies them from the learned professional exemption even when individual officers hold degrees.
The Highly Compensated Shortcut
One boundary worth knowing: there is a streamlined exemption for employees earning at least $107,432 per year in total compensation, provided at least $684 of it is paid weekly on a salary basis. Under this test, the duties requirement is relaxed—the employee need only perform office or non-manual work and customarily and regularly carry out at least one exempt duty from the executive, administrative, or professional categories.9U.S. Department of Labor. Fact Sheet 17H – Highly Compensated Employees and the Part 541 Exemption Under the Fair Labor Standards Act Total compensation can include commissions and nondiscretionary bonuses but not benefits like health insurance or retirement contributions. This threshold also reverted to the 2019 rule after the 2024 regulation was vacated.
How Overtime Works When You’re Salaried and Non-Exempt
If you’re salaried and non-exempt, your employer owes you overtime, but the math takes an extra step. First find your regular hourly rate by dividing your weekly salary by the number of hours the salary is intended to cover. If your salary is $800 per week for a 40-hour workweek, your regular rate is $20 per hour and your overtime rate is $30 per hour.10eCFR. 29 CFR 778.113 – Salaried Employees – General
If you’re paid monthly, multiply by 12 and divide by 52 to convert to a weekly figure, then divide by the hours the salary covers. Semimonthly pay works the same way with a factor of 24 instead of 12.
Signs You May Be Misclassified
Employers must track and maintain detailed time records for every non-exempt employee, salaried included. Those records should show hours worked each day, total hours each workweek, the regular hourly rate, straight-time earnings, overtime earnings, and deductions.11U.S. Department of Labor. Recordkeeping and Reporting If your employer isn’t tracking your hours at all, that itself may signal misclassification, because exempt employees are the only ones for whom hours don’t affect pay.
Other warning signs: your job title sounds managerial but you don’t actually supervise anyone or hire and fire; you follow detailed procedures rather than exercising independent judgment; you perform manual or trade work regardless of how much you earn; your salary is below $684 per week; or your employer routinely docks your pay for partial-day absences.
What You Can Recover
Misclassification carries real financial exposure. A misclassified employee can recover all unpaid overtime going back two years, or three years if the violation was willful.12Office of the Law Revision Counsel. 29 USC 216 – Penalties A court can award an equal amount in liquidated damages, effectively doubling what’s owed. Attorney’s fees and court costs also fall on the employer.
You have two paths. You can file a complaint with the Department of Labor’s Wage and Hour Division, which will investigate confidentially and can require the employer to pay back wages.13U.S. Department of Labor. How to File a Complaint Or you can file a private lawsuit for back pay, liquidated damages, and legal fees. You can’t pursue both at the same time; once the Secretary of Labor files an action on your behalf, your private right of action terminates for the claims covered by that action.
The FLSA also prohibits retaliation. Your employer cannot fire you, demote you, or discriminate against you because you filed a wage complaint, participated in an investigation, or testified in a related proceeding.14Office of the Law Revision Counsel. 29 USC 215 – Prohibited Acts If they do, you have a separate claim for damages, including lost wages and reinstatement.