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Code of Federal Regulations Pertaining to ESA |
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Labor |
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Wage and Hour Division, Department of Labor |
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Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Computer and Outside Sales Employees |
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Executive Employees |
29CFR541.106 - Concurrent duties.
- Section Number: 541.106
- Section Name: Concurrent duties.
(a) Concurrent performance of exempt and nonexempt work does not
disqualify an employee from the executive exemption if the requirements
of Sec. 541.100 are otherwise met. Whether an employee meets the
requirements of Sec. 541.100 when the employee performs concurrent
duties is determined on a case-by-case basis and based on the factors
set forth in Sec. 541.700. Generally, exempt executives make the
decision regarding when to perform nonexempt duties and remain
responsible for the success or failure of business operations under
their management while performing the nonexempt work. In contrast, the
nonexempt employee generally is directed by a supervisor to perform the
exempt work or performs the exempt work for defined time periods. An
employee whose primary duty is ordinary production work or routine,
recurrent or repetitive tasks cannot qualify for exemption as an
executive.
(b) For example, an assistant manager in a retail establishment may
perform work such as serving customers, cooking food, stocking shelves
and cleaning the establishment, but performance of such nonexempt work
does not preclude the exemption if the assistant manager's primary duty
is management. An assistant manager can supervise employees and serve
customers at the same time without losing the exemption. An exempt
employee can also simultaneously direct the work of other employees and
stock shelves.
(c) In contrast, a relief supervisor or working supervisor whose
primary duty is performing nonexempt work on the production line in a
manufacturing plant does not become exempt merely because the nonexempt
production line employee occasionally has some responsibility for
directing the work of other nonexempt production line employees when,
for example, the exempt supervisor is unavailable. Similarly, an
employee whose primary duty is to work as an electrician is not an
exempt executive even if the employee also directs the work of other
employees on the job site, orders parts and materials for the job, and
handles requests from the prime contractor.
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