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Generally, under the Fair Labor Standards Act (FLSA), workers must be paid overtime if they work more than 40 hours in a work week, but there are many exceptions to this general rule. The exemptions which excuse compliance only from the overtime provisions of the Fair Labor Standards Act cover the same industries in which employees may be exempt from both overtime and minimum wage requirements, that is, communications and agriculture-related industries. However, the exemption from overtime most commonly applies to various sectors of the transportation industry, which is an industry that is generally not exempt from the minimum wage provisions. Overtime exemptions also apply to certain retail and service industry employees. In addition, there are also some partial exemptions from overtime under the FLSA that apply to employers that are subject to certain collective bargaining agreements and to certain public sector employees.
Retail or Service Establishment Overtime Exemptions
- Retail Salesperson on Commissions – Retail salespeople qualify for an exemption from overtime requirements under 29 C.F.R. § 207(i) if their regular rate of pay exceeds the applicable minimum wage, and if more than one-half of the salesperson’s compensation represents commissions on goods or services.
- Non-Manufacturing Retailers of Automobiles, Aircraft, Farm Implements and Other Motor Vehicles – Section 13(b)(10) of the FLSA, 29 U.S.C. § 213(b)(10), provides an overtime exemption covering salesmen and mechanics who work for nonmanufacturing establishments engaged in the sale of vehicles, farm implements, trailers, boats or aircraft to ultimate purchasers.
Agricultural and Related Overtime Exemptions
- Employees Engaged in Agriculture or in the Operation of Nonprofit Irrigation Facilities – Employees working in agriculture are exempt from overtime under Section 13(b)(12) of the Act, 29 U.S.C. § 213(b)(12). Also exempt under this section are employees engaged in the operation of canals or reservoirs, not owned or operated for profit, and which are used exclusively for agricultural purposes.
- Livestock Auction Activities – There is an exemption for work performed in connection with livestock auctions.
- Small Logging Crews – Section 13(b)(28) of the FLSA, 29 U.S.C § 213(b)(28), provides an overtime exemption for any employee who is employed in planting trees, felling timber, or transporting logs, if the number of employees employed by his employer in such forestry or lumbering operations does not exceed eight.
Transportation Industry Exemptions
- Airlines – The FLSA overtime pay requirements do not apply to any employee of an air carrier that is subject to the provisions of the Railway Labor Act. If an air carrier is engaged in interstate or foreign commerce or in the transportation of the United States mail, it is subject to the Railway Labor Act and, therefore, it is within the overtime exemption.
- Motor Carriers – Employees of motor carriers are exempt from overtime under the Fair Labor Standards Act if the Secretary of Transportation has the power to regulate their minimum qualifications and maximum hours of service under the Motor Carrier Act.
- Railroads – Employees of an employer engaged in the operation of a common carrier by rail and subject to the provisions of Part I of the Interstate Commerce Act are exempt from overtime.
Section 13(b)(21) of the Fair Labor Standards Act, 29 U.S.C. § 213(b)(21), provides an exemption from overtime to any employee who is employed in domestic service in a household and who resides in the household where they work.
Miscellaneous Overtime Exemptions for Private Industry
- Partial Exemption for Employers Subject to Certain Collective Bargaining Agreements – A partial overtime exemption is also available to employers who are parties to collective bargaining agreements that specify a certain maximum hours of work under wage plans for covered employees.
- Public Sector Exemptions for Certain Small Agencies and for Firefighters and Law Enforcement Personnel – A complete overtime exemption is provided to any employee of a public agency providing fire or police protection, which employs less than five employees for such duties. Public agencies that fail to qualify for a complete overtime exemption may be eligible for a partial overtime exemption. See Emergency Personnel Exemptions under the FLSA article.