Ten Categories of Totally Exempt Workers under FLSA

The Fair Labor Standards Act, FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. However, Section 203(a) (2) of the FLSA provides an exemption which excludes certain workers from the definition of an employee. These categories of employees do not have the benefit of any of the provisions of the FLSA and are outlined below.

1. Congressional interns – Section 203(e)(2)(A), in conjunction with Section 203(a)(2) of the Congressional Accountability Act of 1995, which made most employees of Congress subject to the FLSA
2. Employees of the United States Postal Service or the Postal Rate Commission – Section 203(e)(2)(B)
3. Employees of States, political subdivisions of States, or interstate governmental agencies who are exempt from the civil service laws of their States and who are either elected officeholders of the State or subdivision or else are selected by such officeholders to serve on their personal staff, are appointed by such officeholders to a policymaking position, serve as an immediate advisor to such officeholders regarding constitutional or legal powers of the office in question (such as a general counsel), or are employed by the legislature of the State or political subdivision (except for employees of the legislative library of such a State or political subdivision) – Section 203(e)(2)(C)
4. Independent contractors: An independent contractor is self-employed, bears responsibility for his or her own taxes and expenses, and is not subject to an employer’s direction and control.
5. Volunteers for public agencies of States, political subdivisions of States, or interstate governmental agencies under certain conditions – Section 203(e)(4)
6. Volunteers at community food banks who are paid with groceries – Section 203(e)(5)
7. Volunteers for non-profit religious, charitable, and civic organizations
8. Certain trainees : The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. The following six criteria must be applied when making this determination:

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.

 9.     Prisoners in jail or correctional institutions

10.  Church members performing religious duties

 Next week we would look at other types of exempt worker under FLSA. Stay with us and be informed: subscribe to our weekly newsletter.