FLSA related terms and definitions

The following provides definitions or examples for terms that are significant in determining whether a position is covered by the FLSA overtime regulations or exempt from them.

Academic instruction or training

Work in any of the following areas:

  • Administration of curriculum
  • Examination of quality and methods of instruction
  • Measurement of learning potential and achievement
  • Maintenance of academic and grading standards

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Advanced or specialized knowledge

As used in the learned or creative professional exemption, this term means knowledge that is predominantly intellectual, requiring discretion and judgment to analyze, interpret or make deductions from varying facts or circumstances. An example is the kind of knowledge that a research scientist would apply to decide how to establish or modify a research protocol. Routine mental, manual, mechanical or physical work is not considered to require advanced or specialized knowledge, and such knowledge cannot be attained at the high school level.

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Discretion and independent judgment

Under federal regulations, discretion and independent judgment means:

Comparing and evaluating of alternative courses of action and independently determining a course of action over “matters of significance,” free from immediate direction. One must have the delegated authority to make choices and commitments on behalf of an organization.

Discretion and independent judgment does not mean following prescribed procedures, determining which of several procedures to follow, or determining whether specified standards have been satisfied, even if there is some leeway in reaching a conclusion.

The level of responsibility defined by the regulations goes beyond the responsibility all employees have to exercise their best judgment and discretion when their duties involve confidential information such as employee files, donor records, or academic disciplinary proceedings. Discretion and independent judgment does not mean following prescribed procedures, determining which of several procedures to follow, or determining whether specified standards have been satisfied, even if there is some leeway in reaching a conclusion.

Manuals, guidelines or other resources may be used to guide decisions if they contain or relate to highly technical, scientific, legal, financial or other similarly complex matters and can be understood or interpreted only by those with advanced or specialized knowledge or skills. Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed.

The more yes answers there are to the following questions, the more likely it is that the position exercises “discretion and independent judgment” within the meaning of the FLSA regulations.

Does the position:

  • Formulate, affect, interpret, or implement management policies or operating practices?
  • Carry out major assignments in conducting a business’s operations?
  • Perform work that affects business operations to a substantial degree even if the employee’s assignments are related to operations of a particular segment of the business?
  • Have authority to commit the employer in matters that have significant financial impact?
  • Have authority to waive or deviate from established policies or procedures without prior approval?
  • Have authority to negotiate and bind the company to significant commitments?
  • Provide consultation or expert advice to management?
  • Plan for long-or-short-term business objectives?
  • Investigate and resolve matters of significance on behalf of management?
  • Represent the company in handling complaints, arbitrating disputes or resolving grievances?

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Field of science or learning

These are occupations with recognized professional status as distinguished from the mechanical arts or skilled trades. Examples are law, accounting, actuarial computation, theology, teaching, physical sciences, medicine, architecture, chemical sciences, pharmacy, engineering, and the biological sciences.

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Refers to management of processes, projects, and contracts in addition to management of employees. Management activities may include:

  • Interviewing, selecting, and training
  • Customarily and regularly directing work
  • Setting and adjusting hours of work
  • Requesting pay adjustments
  • Evaluating performance for the purpose of recommending promotions or other changes in status
  • Handling complaints and grievances
  • Recommending disciplinary actions
  • Planning work and determining techniques to be used
  • Controlling the flow and distributions of work assignments
  • Providing for work environment concerns (safety, disability accommodations, etc.)

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Matters of significance

Refers to the level of importance or the consequence of the work performed. The wider the scope of impact of an action or decision, the more likely an issue is a matter of significance.

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Particular weight

Factors that are considered in determining whether a worker’s recommendations regarding hiring or firing are given particular weight:

  • Is it a part of the employee’s job duties to make such recommendations?
  • How often are such recommendations made, requested and relied upon?

Particular weight is not intended to include occasional suggestions.

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Primary duty

The main, major or most important duty performed as determined by looking at the job as a whole rather than by examining the job duty-by-duty. A primary duty is typically more than 50 percent of an employee’s time, but for some positions may be slightly less than 50 percent.

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Prolonged course of specialized intellectual instruction or study

Specialized academic training, often with a particular academic degree, is usually a prerequisite for performing the work. However, those who have substantially the same knowledge level and perform substantially the same work as a degreed professional, but have attained the advanced knowledge through a combination of work experience and intellectual instruction are not excluded. It does not include occupations that may be performed with only general knowledge acquired by an academic degree in any field; or knowledge acquired through an apprenticeship or training in the performance of routine mental, manual, mechanical or physical processes.

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Recognized field of artistic or creative endeavor

As in the “creative professional” exemption, this term is interpreted fairly narrowly. Typical recognized fields of artistic or creative endeavor are music performance, acting, composing, conducting, and other areas of the performing arts. In writing, personal essayists, novelists, short story writers, play writers, screenplay writers, and writing positions in advertising agencies with final responsibility for advertising content are included. Painters, photographers, and cartoonists are examples from the graphic arts.

Journalists working for newspapers, magazines, television and other media are generally not considered performing an artistic or creative endeavor unless they perform on-air in radio or television; conduct investigative interviews; analyze or interpret public events or write editorials, opinion columns, or commentary. Journalists or writers who collect, organize, and record information that is routine or public, or who do not interpret or analyze information, or who have their work product subject to substantial control are not considered to be in an artistic or creative endeavor.

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Recognized unit

A group with permanent status and function regarded as a distinct entity within a larger group. This is distinguished from a collection of employees assigned from time to time to a specific job or series of jobs. A recognized unit may be as small as three or four people, but is often larger.

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