Exempt & Non-Exempt Employees

The federal Fair Labor Standards Act (FLSA) exempts (or excludes) certain employees from its minimum wage and overtime laws. Employees who are exempt from the FLSA’s minimum wage and overtime laws include:

• Executive, administrative, and professional employees and some computer workers;
• Outside salespeople, such as those who do sales away from the employer’s place of business, like a door-to-door salesperson

The FLSA exempts other groups of employees from its minimum wage and/or overtime laws, including:

• Aircraft salespeople (exempt from overtime laws)
• Airline employees (exempt from overtime laws)
• Amusement/recreational employees in national parks/forests/Wildlife Refuge System (exempt from overtime laws)
• Babysitters on a casual basis (exempt from minimum wage and overtime laws)
• Boat salespeople (exempt from overtime laws)
• Buyers of agricultural products (exempt from overtime laws)
• Companions for the elderly (exempt from minimum wage and overtime laws)
• Country elevator workers (rural) (exempt from overtime laws)
• Workers with disabilities (exempt from minimum wage laws)
• Domestic employees who live-in (exempt from overtime laws)
• Farm implement salespeople (exempt from overtime laws)
• Federal criminal investigators (exempt from minimum wage and overtime laws)
• Firefighters working in small (less than 5 firefighters) public fire departments (exempt from overtime laws)
• Fishing (exempt from minimum wage and overtime laws)
• Forestry employees of small (less than 9 employees) firms (exempt from overtime laws)
• Fruit & vegetable transportation employees (exempt from overtime laws)
• Homeworkers making wreaths (exempt from minimum wage, overtime, and child labor laws)
• Houseparents in non-profit educational institutions (exempt from overtime laws)
• Livestock auction workers (exempt from overtime laws)
• Local delivery drivers and driver’s helpers (exempt from overtime laws)
• Lumber operations employees of small (less than 9 employees) firms (exempt from overtime laws)
• Motion picture theater employees (exempt from overtime laws)
• Newspaper delivery (exempt from minimum wage, overtime, and child labor laws)
• Newspaper employees of limited circulation newspapers (exempt from minimum wage and overtime laws)
• Police officers working in small (less than 5 officers) public police departments (exempt from overtime laws)
• Radio station employees in small markets (exempt from overtime laws)
• Railroad employees (exempt from overtime laws)
• Seamen on American vessels (exempt from overtime laws)
• Seamen on other than American vessels (exempt from minimum wage and overtime laws)
• Sugar processing employees (exempt from overtime laws)
• Switchboard operators (exempt from minimum wage and overtime laws)
• Taxicab drivers (exempt from overtime laws)
• Television station employees in small markets (exempt from overtime laws)
• Truck and trailer salespeople (exempt from overtime laws)
• Youth employed as actors or performers (exempt from child labor laws)
• Youth employed by their parents (exempt from child labor laws)

Your job title does not decide whether you are exempt from the overtime rules. Instead, your job duties, whether you are paid on a salary basis, and whether you meet certain salary thresholds determine whether you are properly classified as an exempt employee.

In New York, the New York State Minimum Wage Orders contain the State’s overtime requirements. These requirements are in addition to those required by federal law, including the Fair Labor Standards Act (FLSA).

Some occupations are exempt from overtime under the federal FLSA but are still entitled to overtime under the New York State Labor Law.

Some occupations are exempt from the overtime pay provisions of the State Labor Law (Section 651) and the FLSA. These include:

• Executive Employees
• Administrative Employees
• Professional Employees
• Outside Salespeople
• Individuals Working for a Federal, State, or Municipal Government
• Farm Laborers
• Certain Volunteers, Interns and Apprentices
• Taxicab drivers
• Members of Religious Orders
• Certain Individuals Working for Religious or Charitable institutions
• Camp Counselors
• Individuals Working for a Fraternity, Sorority, Student or Faculty Association
• Part-time Babysitters

An employment agreement or contract such as a collective bargaining agreement may call for greater overtime payments than those required by state and federal law.

Minimum Weekly Salary for Executive and Administrative Employees

Each time the New York State minimum wage increases, the state’s minimum salary required for executive and administrative employees (but not professional employees in New York) will increase proportionately. As of January 1, 2024, the state minimum weekly salary for administrative and executive (excluding professional) employees is as follows:

• $1124.20 per week for employees in New York State (approximately $58,458.40 per year), or
• $1,200.00 per week (approximately $62,400 per year) for employees who work in Nassau, Suffolk, and Westchester counties, and in New York City for any size employer and for Fast Food Establishments.

The federal salary exemption threshold under the Fair Labor Standards Act for administrative, executive, and professional employees is $684 per week (equivalent to $35,568 per year). Employees who earn less than this amount are not exempt and become eligible for overtime pay, regardless of actual duties. The FLSA also establishes a highly compensated employee salary level of $107,432 per year. In most cases, the New York salary thresholds exceed those of the U.S. Department of Labor.

In New York, the salary exemption thresholds have gradually increased each year through 2026 for administrative and executive employees only. The NYDOL established annual increases to the administrative and executive salary exemption thresholds through January 2026 as follows:

New York City and the rest of “downstate” (Nassau, Suffolk, and Westchester counties):

• $1,237.50 per week ($64,350 per year) effective January 1, 2025
• $1,275 per week ($66,300 per year) effective January 1, 2026

The rest of New York State (areas outside of New York City and Nassau, Suffolk, and Westchester counties):

• $1,161.65 per week ($60,405.80 per year) effective January 1, 2025
• $1,199.10 per week ($62,353.20 per year) effective January 1, 2026
• Beginning in 2027 and beyond, subsequent minimum wage and salary threshold increases will be determined by the New York State Department of Labor and tied to the three-year average of the applicable regional consumer price index.

Section 142-2.14 of the NYCRR does not include specific salary exemption thresholds for professional employees. Therefore, federal law governs. The federal minimum for exempt professional employees under the Fair Labor Standards Act (FLSA) is $684 per week or $35,568 per year.

The U.S. Department of Labor issued a final rule on April 23, 2024, that temporarily increased the minimum salary threshold to $844 per week ($43,888 annually) effective July 1, 2024, with a second planned increase to $1,128 per week ($58,656 annually) scheduled for January 1, 2025. However, on November 15, 2024, a federal judge in the U.S. District Court for the Eastern District of Texas vacated the entire rule nationwide. As a result, the federal minimum salary threshold reverted to $684 per week ($35,568 per year), which has been in effect since 2020. The highly compensated employee threshold also reverted to $107,432 per year. While the DOL filed appeals, the current administration has indicated it may not pursue reinstatement of the higher thresholds.

Pay Frequency and Pay Deductions

Another issue has to do with salary thresholds for exemptions from New York’s pay frequency laws. Effective in March 2024, the New York Labor Law increased the salary threshold for exemptions from pay frequency laws for executive, administrative, and professional employees from $900 to $1,300 per week, to enhance wage protections. The purpose of these thresholds, which are different from the above overtime exemption thresholds, is to create an exemption from the NYLL’s Article 6 requirements regarding pay frequency, consent for direct deposit, and the timing of other benefits and wage supplements for executives and administrative and professional employees.

Related to pay frequency, New York law requires manual workers to be paid at least weekly. Other employees who do not meet the executive, administrative, and professional salary exemptions and other non-manual employees must be paid at least semimonthly.

Depending on your responsibilities at work (as stated in your job description), you may be an exempt employee one week and non-exempt another week. It is possible to be misclassified as exempt, which might entitle you to back-pay for unpaid overtime work.

Employers in New York may not make deductions from an employee’s pay unless they are either required by law or allowed by law; if it is only allowed, the employee must agree to the deduction in writing.

Deductions are allowed for the following:

• Insurance premiums
• Prepaid legal plans
• Pensions or health and welfare benefits
• Certain charitable contributions
• Federal government bonds
• Union dues
• Mass transit passes
• Gym membership dues
• Cafeteria, vending machines, or gift shop purchases, but only if the employer is a hospital, college, or university
• Pharmacy purchases
• Tuition, room, board, and fees for most educational institutions
• Daycare, before-school care, and after-school care
• Housing, but only if the employer is a hospital and the cost is not higher than market value
• Overpayment of wages, but only if the employer complies with detailed regulations
• Advances, but only if the employer complies with detailed regulations

Employers must provide an itemized statement of deductions taken each pay period.

Similarly, the federal Fair Labor Standards Act prohibits making deductions that would bring an employee’s pay below the minimum wage or cut into their overtime earnings.

Under the FLSA, salaried employees are entitled to a predetermined amount of pay for every week in which the employee performs any work. The predetermined amount is not subject to reduction because of variations in the quality or quantity of work performed. Exempt employees must get their full salary regardless of the number of days or hours worked. The employee must receive the predetermined amount of salary if they work during the pay period. If work is unavailable, but the employee is available and able to work, they must get paid as if they were on the job.

“Pay docking” occurs whenever a business owner takes part of an employee’s wages. The FLSA permits pay docking for exempt employees in certain situations. Some examples include, but are not limited to:

• Absences of one or more full days for personal reasons unrelated to sickness or accident.
• Absences of one or more full days for sickness or disability if you have a benefit plan that covers these absences, and the employee has exhausted their benefits.
• To offset any amount received from jury duty, witness fees, or military pay. Note that beyond this, you can’t deduct for these absences.
• As a penalty in good faith for violating safety rules or company policy, all workers must be subject to the penalties. Employees must know of the penalties before they receive them.
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for violations of safety rules or company policies as above.
• For intermittent unpaid leave under the Family and Medical Leave Act (FMLA). Alternatively, a salaried worker may convert to hourly under FMLA without losing their status.

All deductions to an exempt employee’s salary are in full-day increments. Employers cannot dock pay if the employee works any time of the day. The only exception is during the first or last week of employment. If the employee does not work a full week or leaves in the middle of a workweek and only works a partial day, they only need to get paid for the actual time worked.

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Legal Editor: Joseph F. Tremiti, July 2024. Last Updated January 2026.