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DOL/ESA

RIN: 1215-AA14

Publication ID: Spring 1997

Title: Defining and Delimiting the Term "Any Employee Employed in a Bona Fide Executive, Administrative, or Professional Capacity" (ESA/W-H)
Abstract: These regulations set forth the criteria for exemption from the Fair Labor Standards Act's minimum wage and overtime requirements for "executive," "administrative," "professional" and "outside sales employees." To be exempt, employees must meet certain tests relating to duties and responsibilities and be paid on a salary basis at specified levels. A final rule increasing the salary test levels was published on January 13, 1981 (46 FR 3010), to become effective on February 13, 1981, but was indefinitely stayed on February 12, 1981 (46 FR 11972). On March 27, 1981, a proposal to suspend the final rule indefinitely was published (46 FR 18998), with comments due by April 28, 1981. As a result of numerous comments and petitions from industry groups on the duties and responsibilities tests, and as a result of recent case law developments, the Department concluded that a more comprehensive review of these regulations was needed. An ANPRM reopening the comment period and broadening the scope of review to include all aspects of the regulations was published on November 19, 1985, with the comment period subsequently extended to March 22, 1986. ^PThe Department has revised these regulations since the ANPRM to address specific issues. In 1991, as the result of an amendment to the Fair Labor Standards Act (FLSA), the regulations were revised to permit certain computer systems analysts, computer programmers, software engineers, and other similarly skilled professional employees to qualify for the exemption, including those paid on an hourly basis if their rates of pay exceed 6-1/2 times the applicable minimum wage. Also, in 1992 the Department issued a final rule which provided, in part, that an otherwise exempt public sector employee would not be disqualified from the exemption's requirement for payment on a "salary basis" solely because the employee is paid according to a public pay and leave system that, absent the use of paid leave, requires the employee's pay to be reduced for absences of less than one workday. In addition, a number of court rulings have caused confusion on the factors to consider in meeting the regulation's "salary basis" criteria, in both the public and private sectors.
Agency: Department of Labor(DOL)	Priority: Economically Significant
RIN Status: Previously published in the Unified Agenda	Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes	Unfunded Mandates: State, local, or tribal governments; Private Sector
CFR Citation: 29 CFR 541
Legal Authority: 29 USC 213(a)(1)

Timetable:

Action	Date	FR Cite
Indefinite Stay of Final Rule	02/12/1981	46 FR 11972
Proposal To Suspend Rule Indefinitely	03/27/1981	46 FR 18998
ANPRM	11/19/1985	50 FR 47696
Extension of ANPRM Comment Period From 01/21/86 to 03/22/86	01/17/1986	51 FR 2525
ANPRM Comment Period End	03/22/1986	51 FR 2525
NPRM	09/00/1997

Regulatory Flexibility Analysis Required: Yes	Government Levels Affected: Federal, Local, State
Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations
Included in the Regulatory Plan: Yes
Agency Contact: John R. Fraser Deputy Administrator (WHD) Department of Labor Employment Standards Administration Room S3502, 200 Constitution Avenue NW, FP Building, Washington, DC 20210 Phone:202 693-0051 Fax:202 693-1432