Exempt vs Non-Exempt Test 2026 — Am I Entitled to OT?
Find out if you are exempt or non-exempt under the FLSA. Answer 5 quick questions about your pay, salary, and job duties to check whether you may be entitled to overtime pay. Free, instant, based on federal and state exemption thresholds.
Exempt vs. Non-Exempt Checker
Answer 5 quick questions to find out if you are likely exempt or non-exempt
under the FLSA — and whether you may be entitled to overtime pay.
How are you paid?
Select the option that best describes your pay arrangement.
What is your salary?
Enter your gross annual salary to compare against exemption thresholds.
What state do you work in?
Some states set higher salary thresholds for overtime exemption than the federal standard.
What best describes your primary job duties?
Under the FLSA, exemption requires meeting a specific duties test — not just a job title.
Is your salary guaranteed each pay period?
The salary basis test requires a predetermined amount not subject to reduction based on quality or quantity of work.
What Does Exempt vs. Non-Exempt Mean?
Exempt and non-exempt are classifications under the Fair Labor Standards Act (FLSA) that determine whether an employee is entitled to overtime pay.
Non-exempt employees are covered by the FLSA’s overtime provisions. They must be paid at least 1.5 times their regular hourly rate for every hour worked over 40 in a workweek. Employers must track their hours.
Exempt employees are excluded from overtime requirements. They receive a fixed salary regardless of hours worked and are not entitled to overtime pay, even if they work more than 40 hours per week.
The distinction matters because misclassification is one of the most common FLSA violations. According to the U.S. Department of Labor, employees who are improperly classified as exempt may be owed significant back pay for unpaid overtime.
The 3 Tests for Exempt Status
To be classified as exempt from overtime under the FLSA, an employee must pass all three tests. Failing even one test means the employee is non-exempt and entitled to overtime.
Test 1: Salary Basis
The employee must be paid on a salary basis — a fixed, predetermined amount each pay period that is not reduced based on the quality or quantity of work performed. Hourly, commission, and piece-rate employees generally do not meet the salary basis test.
There are limited exceptions: the salary basis test does not apply to the outside sales exemption, and certain computer professionals may be paid hourly at a rate of at least $27.63 per hour.
Test 2: Salary Level
The employee must earn at least the minimum salary threshold. Under federal law in 2026, the threshold is $684 per week ($35,568 per year).
Several states set their own thresholds above the federal level. When state and federal thresholds differ, the higher threshold applies:
| State | Weekly Threshold | Annual Equivalent |
|---|---|---|
| Federal (FLSA) | $684 | $35,568 |
| California | $1,352 | $70,304 |
| Colorado | $1,111.23 | $57,784 |
| Maine | $871.16 | $45,300 |
| New York (NYC area) | $1,275 | $66,300 |
| Washington | $1,541.70 | $80,168 |
California ties its threshold to 2× the state minimum wage. Washington uses 2.25× the state minimum wage. These thresholds increase annually as minimum wages rise.
Employees earning below the applicable threshold are non-exempt regardless of their duties.
Test 3: Duties
The employee’s primary duty must fall into one of the recognized exempt categories:
Executive exemption — The employee’s primary duty is managing a department or subdivision of the enterprise, they customarily direct the work of at least 2 full-time employees, and they have authority to hire, fire, or make recommendations that carry particular weight.
Administrative exemption — The employee’s primary duty is office or non-manual work directly related to the management or general business operations of the employer, and they exercise discretion and independent judgment on matters of significance.
Professional exemption — The employee’s primary duty requires advanced knowledge in a field of science or learning (law, medicine, engineering, accounting, teaching, etc.), customarily acquired through prolonged specialized education.
Computer professional exemption — The employee works as a systems analyst, programmer, software engineer, or similar role, applying systems analysis techniques, designing or testing software, or performing related computer work requiring advanced skills.
Outside sales exemption — The employee’s primary duty is making sales or obtaining contracts, and they customarily and regularly work away from the employer’s place of business. No salary requirement applies.
If the employee’s primary duties do not fit any of these categories — for example, manual labor, production work, retail, food service, clerical support, customer service, or technical support — the employee is non-exempt.
Who Is Non-Exempt? Common Examples
Most U.S. employees are non-exempt. Common non-exempt roles include:
Hourly workers in any industry. Retail and food service employees. Construction workers. Factory and warehouse workers. Customer service representatives. Medical technicians and nurses (in most cases). Administrative assistants and receptionists. Paralegals (in most jurisdictions). IT support and helpdesk staff (unless meeting the computer professional duties test). Truck drivers and delivery workers. Security guards. Maintenance and janitorial staff.
Being paid a salary does not automatically make an employee exempt. Both the salary level test and the duties test must also be met.
Who Is Exempt? Common Examples
Common exempt roles include:
Corporate executives, VPs, directors, and department managers who supervise 2+ employees. HR managers, finance managers, and operations managers. Licensed attorneys, physicians, and engineers. Certified public accountants. Registered architects. Pharmacists. Outside sales representatives who work primarily in the field. Software engineers and systems architects (if meeting the computer professional test). University professors and teachers.
How to Use This Checker
- How are you paid? — Select salary, hourly, or commission/day rate. Hourly and commission employees are almost always non-exempt.
- What is your annual compensation? — Enter your salary and optionally select your state. The tool compares your compensation to the applicable threshold (federal or state, whichever is higher).
- What are your primary duties? — Select the category that best describes your main job responsibilities.
- Do you exercise independent judgment? — Exempt roles require discretion and judgment on significant matters.
- Do you supervise other employees? — Required for the executive exemption (2+ full-time employees).
The checker evaluates all three FLSA tests and gives one of three results: Likely Non-Exempt (may be entitled to overtime), Likely Exempt (may not be entitled to overtime), or Classification Unclear (requires further review).
What If I Am Misclassified?
Employee misclassification occurs when an employer classifies a non-exempt employee as exempt, either intentionally or through error. Misclassification means the employee may be owed unpaid overtime for all hours worked over 40 per week during the period of misclassification.
Under the FLSA, the statute of limitations for unpaid overtime claims is 2 years from the date of each violation, or 3 years if the violation was willful. Employees may also be entitled to liquidated damages (an amount equal to the unpaid overtime), plus attorney’s fees.
Employees who believe they are misclassified can file a complaint with the U.S. Department of Labor Wage and Hour Division, contact their state labor agency, or consult an employment attorney. Retaliation against employees who file wage complaints is prohibited under the FLSA.
2026 Salary Threshold Updates
In 2026, several states increased their exempt salary thresholds above the federal level:
California increased to $1,352/week ($70,304/year), tied to 2× the state minimum wage of $16.50/hr.
Washington increased to $1,541.70/week ($80,168/year) for all employers, tied to 2.25× the state minimum wage. Washington has the highest exempt salary threshold in the nation.
Colorado increased to $1,111.23/week ($57,784/year) under the Colorado Overtime and Minimum Pay Standards (COMPS) Order.
New York increased to $1,275/week ($66,300/year) in New York City and Nassau, Suffolk, and Westchester counties.
The federal threshold remains $684/week ($35,568/year). No federal increase has taken effect since 2020, though a proposed increase was struck down in court.
Frequently Asked Questions
What is an exempt employee?
An exempt employee is one who is excluded from the FLSA’s overtime pay requirements. To be exempt, the employee must be paid on a salary basis, earn at least $684/week (or the applicable state threshold), and perform executive, administrative, professional, computer, or outside sales duties as their primary function. All three tests must be met.
What is a non-exempt employee?
A non-exempt employee is covered by the FLSA’s overtime provisions and must be paid 1.5× their regular rate for hours worked over 40 in a workweek. Most U.S. employees are non-exempt. Hourly workers are almost always non-exempt.
What is the difference between exempt and non-exempt?
The key difference is overtime eligibility. Non-exempt employees are entitled to overtime pay (1.5× their regular rate after 40 hours/week). Exempt employees are not. Exempt employees must be salaried, meet a minimum salary threshold, and perform qualifying duties. Non-exempt employees can be paid hourly, salaried, or on any other basis.
Am I exempt from overtime?
You are exempt from overtime only if you meet all three FLSA tests: you are paid on a salary basis, your salary meets the applicable threshold ($684/week federal, higher in some states), and your primary duties qualify under one of the exempt categories (executive, administrative, professional, computer, or outside sales). Use the checker above to evaluate your situation.
Can a salaried employee be non-exempt?
Yes. Being paid a salary does not automatically make an employee exempt. If the salary is below the threshold, or if the employee’s duties do not meet an exempt category, the employee is non-exempt and entitled to overtime — even if paid a salary.
What is the FLSA salary threshold for 2026?
The federal FLSA salary threshold for overtime exemption is $684 per week ($35,568 per year) in 2026. Some states set higher thresholds: California ($1,352/week), Washington ($1,541.70/week), Colorado ($1,111.23/week), and New York ($1,275/week in NYC area).
What does FLSA exempt mean?
FLSA exempt means the employee is excluded from the Fair Labor Standards Act’s minimum wage and/or overtime requirements. Most commonly, “exempt” refers to employees who meet the executive, administrative, or professional (EAP) exemptions and are therefore not entitled to overtime pay.
Is it better to be exempt or non-exempt?
Neither is inherently better — it depends on the role and compensation. Exempt employees typically have higher salaries and more schedule flexibility, but do not receive overtime pay regardless of hours worked. Non-exempt employees earn overtime for extra hours, but may have less schedule flexibility. The classification is determined by law, not by employee preference.
What happens if my employer misclassifies me?
If you are classified as exempt but do not meet all three FLSA tests, your employer may owe you back pay for all unpaid overtime during the period of misclassification (up to 2 years, or 3 years if willful). You may also be entitled to liquidated damages. You can file a complaint with the DOL Wage and Hour Division or consult an employment attorney.
Related Guides and Tools
- Exempt vs. Non-Exempt Employees — Complete Guide — Detailed explanation of all FLSA exemption categories, duties tests, and salary thresholds.
- Fair Labor Standards Act (FLSA) Guide — Federal wage and hour rules governing overtime, minimum wage, and recordkeeping.
- Overtime Pay Calculator — Calculate your overtime earnings based on your state’s specific rules.
- Salary to Hourly Calculator — Convert your salary to an hourly rate and see your overtime rate.
- Overtime Laws by State — State-specific overtime thresholds, daily overtime, and double-time rules.