FLSA and WMWA overtime eligibility and exemption
Table of Contents
Last updated: October 2, 2023
ALERT: Effective January 1, 2024, a change in Washington State overtime law that sets salary thresholds at the state level raises the salary threshold minimum to $1,302.40 per week ($67,728 per year or $5,644 per month). This minimum salary requirement applies to both full-time and part-time employees regardless of how many hours they work.
About the FLSA and WMWA
The federal Fair Labor Standards Act (FLSA) and state Washington Minimum Wage Act (WMWA) establish minimum standards for minimum wage, overtime pay, recordkeeping and youth employment standards that may be exceeded, but cannot be waived or reduced. Employers must comply with any federal, state or municipal laws, regulations or ordinances, or collective bargaining agreements or employer implemented policies that provide greater benefits than those established by the FLSA. At this time the WMWA is more generous to employees than the FLSA, so it is followed.
Both the FLSA and WMWA require that most workers receive overtime compensation. Only positions that meet certain narrowly defined criteria are exempt from the FLSA and WMWA’s overtime requirements.
FLSA and WMWA overtime exemption standards
UWHR Compensation is responsible for performing analysis on each position to determine the positions that are covered by the FLSA and WMWA overtime regulations. This determination is normally made at the time a position is created and may be reviewed when a position is reviewed later by the Compensation office.
All three of the following requirements must be met for a position to be exempt from the FLSA and WMWA overtime payment requirement:
- The position must be paid on a salary (not hourly) basis, except for certain computer workers (see the Computer Professional Exemption). Being paid on a salary basis means that an employee is paid the same amount per workweek regardless of the hours the employee actually works.
- The position must be paid at least the salary threshold, regardless of percent time worked (see below). The same threshold applies to part-time employees; it is not prorated for employees who are less than full-time.
Weekly $1,259.20 Monthly $5,457 Annual $65,484
- The position’s job duties must meet the duties test for one or more for one of the exemption categories—see below.
Overtime salary threshold
The overtime salary threshold is adjusted annually by the Washington State Department of Labor & Industries (L&I) until the threshold reaches 2.5 times the state minimum wage in 2028. After that, increases to the overtime salary threshold will be tied to changes in the state’s minimum wage as it is adjusted for inflation.
Under the overtime provisions of the WMWA, a higher-than-FLSA rate will apply according to the following schedule established by the L&I:
|Effective Date||Weekly Salary||Monthly Salary||Annual Salary|
|January 1, 2023 (actual)||$1,259.20||$5,457||$65,484|
|January 1, 2024 (actual)||$1,302.40||$5,644||$67,728|
|January 1, 2025 (estimated)||$1,504.80||$6,521||$78,249.60|
|January 1, 2026 (estimated)||$1,538.10||$6,666||$79,981.20|
|January 1, 2027 (estimated)||$1,743||$7,553||$90,636|
|January 1, 2028 (estimated)||$1,780||$7,714||$92,560|
Note: The values in the above chart shown as “estimated” were calculated by the Washington Department of Labor and Industries based on their assumption about inflation as measured by the Consumer Price Index (CPI).
Professional staff, contract covered staff, and classified non-union exempt positions that do not meet the salary threshold must be changed to overtime-eligible.
FLSA and WMWA job duty exemption categories and checklists
To be exempt from FLSA and WMWA overtime regulations, a position’s salary amount and job duties must meet criteria specified in the regulations. These criteria are referred to as the “salary basis” and “duties” tests, respectively. The exemptions apply only to “white collar” employees who meet the salary and duties tests set forth in the regulations. The exemptions do not apply to some types of “blue collar” and “Police, Fire Fighters, Paramedic & Other First Responder” workers who do not qualify for exemption by definition.
The following are summaries of the FLSA- and WMWA-defined exemption criteria. Checklists for the most commonly applied exemption criteria may be used to help employees and managers assess whether a position is likely to be covered by or exempt from the FLSA and WMWA overtime regulations. These are also known as “duties tests.” The duties tests under the WMWA parallel those under the FLSA. A link to the checklist follows the exemption category description. Some terms have special meanings as applied by the FLSA and WMWA regulations. See the FLSA Terms & Definitions webpage.
Employees must be compensated on a salary basis (as defined in the regulations) at a rate not less than the current WMWA salary threshold, unless otherwise specified, and meet at least one of the exemption categories described below:
To qualify for the executive exemption, all of the following tests must be met:
- The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
To qualify for the administrative exemption, all of the following tests must be met:
- The employee’s primary function must be to perform office or non-manual work that is directly related to the management or general business operations of the employer or the employer’s customers; and
- The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
To qualify for the learned professional exemption, all of the following tests must be met:
- The employee’s primary duty must be to perform work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which requires the consistent exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning, such as law, medicine, nursing, accounting, actuarial computation, engineering, education, and various types of physical, chemical, and biological sciences; and
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
To qualify for the creative professional exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than the applicable salary threshold;
- The employee’s primary duty must be to perform work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, such as music, writing, acting, and the graphic arts.
To qualify for the computer professional exemption, the following tests must be met:
- The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than the applicable salary threshold if compensated on an hourly basis, at a rate not less than the current WMWA hourly rate for computer professionals;
- The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field; and,
- The employee’s primary duty must consist of:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
- The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
- A combination of the aforementioned duties, the performance of which requires the same level of skills.
To qualify for the outside sales employee exemption, all of the following tests must be met:
- The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
- The employee must be customarily and regularly engaged away from the employer’s place or places of business.
Duties that do not qualify for FLSA and WMWA overtime exemption
Blue Collar Workers – The exemptions apply only to “white collar” employees who meet the salary and duties tests (see below) set forth in the regulations. The exemptions do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. FLSA- and WMWA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers, and laborers are entitled to overtime premium pay under the FLSA and WMWA, and are not exempt under the regulations no matter how highly paid they might be.
Police, Fire Fighters, Paramedics & Other First Responders – FLSA and WMWA overtime exemptions do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.
Moving nonexempt job duties to exempt employees
If an exempt employee’s duties permanently change such that the employee’s actual duties no longer meet a duties test or the employee’s pay falls below the overtime salary threshold, the employee must be moved to a nonexempt job code. Once this takes place, the employee must track all hours worked and must be paid 1.5 times their regular hourly-equivalent rate for hours worked in excess of 40 hours in a workweek. Departments must reach out to UWHR Compensation to ask for a position review in this scenario.
Temporary emergency performance of nonexempt job duties
During a period of a public health emergency declared by a federal, state or local authority, exempt employees may temporarily perform nonexempt duties without losing their exempt status as long as they continue to be paid on a salary basis at a rate that meets the applicable salary threshold.
Transitioning employees from exempt to nonexempt
UWHR Compensation monitors for upcoming changes and annually provides notification and other support materials for departments.