Exempt v Non-Exempt Employee: How to Tell the Difference and Why it Matters

Overview

Deciding who is entitled to overtime and who may properly be treated as exempt remains one of the more difficult FLSA decisions employers have to make. The Act contains numerous exemptions, but the ones employers rely on most often—the executive, administrative, professional, computer and outside-sales exemptions—come with specific requirements. Paying an employee a salary or placing the position into an exempt category does not finish the analysis. The employer still needs to be able to show why that particular employee qualifies.

That question deserves renewed attention in 2026. After the litigation surrounding the Department of Labor’s 2024 overtime rule, the earlier federal salary threshold was formally restored this year. That change may have resolved uncertainty over the federal salary level for now, but it did not make classification any simpler. The salary-basis requirement is only part of the test. What the employee actually does, the discretion and authority the position carries, the extent of supervision involved, and the exemption being relied upon can still determine whether overtime is owed.

Recent litigation shows how closely those decisions can be examined. In one 2026 case, an employer treated recruiters as exempt under the administrative exemption and relied in part on their job descriptions and the discretion they exercised in carrying out their work. When the court examined their actual responsibilities, it concluded that the judgment they exercised did not rise to the level required for the exemption. The case also raised questions about how thoroughly the classification had been reviewed. For HR, that is an important distinction: a job description may use the right terminology, yet the employee’s day-to-day work may tell a different story.

This is also why job evaluations and conversations with supervisors and employees matter. If a position is described as exercising “independent judgment,” what decisions is the employee actually making? If someone is classified as an executive, what authority does that person really exercise over other employees? Has the job changed since the classification was originally made? These are the kinds of employment-law questions Janette S. Levey has spent years helping employers work through. With more than 20 years of legal experience and over 14 years focused on Employment Law, she brings the perspective of someone accustomed to looking beyond the label attached to a position and examining the facts that can determine whether an employer’s decision is legally defensible.

When a classification is wrong, the issue can extend well beyond changing an employee’s status going forward. Unpaid overtime, liquidated damages, penalties, legal fees, and the cost of responding to a Department of Labor investigation or employee lawsuit may all come into play. A classification that has remained unquestioned for years can therefore become a much larger problem once an employee or investigator begins looking back at how the work was actually performed.

This webinar will help attendees understand how the principal FLSA exemptions work, what must be established before relying on them, and where classification decisions commonly become vulnerable. With Janette’s legal experience grounding the discussion, HR, payroll, and management professionals will be better equipped to examine existing classifications, ask more useful questions when evaluating a position, and make future exempt-versus-non-exempt decisions with a stronger factual and legal basis.

Areas Covered in this Training:

• Difference between exempt v/s non-exempt employees
• The salary basis test
• The most common exemption categories
• The duties test
• Job Titles and Descriptions
• Job Evaluations, Supervisor and Employee Interviews
• Discretion
• Supervision
• Authority
• Case examples: Pharma sales reps; Auto service rep’s;
• Financial services employees
• The New Overtime Rules applicable

Handouts:

Attendees will gain access to exclusive handouts, including presentation materials provided by the speaker and additional resources developed by Amorit Education to aid your teams in post-session implementation.

Why should you attend?

Exempt versus non-exempt classification is an area where a decision that looks routine can create significant overtime exposure later. With the federal salary threshold restored in 2026 and the duties tests continuing to drive classification decisions, HR and payroll professionals need to be sure they are applying the current rules correctly rather than relying on salary, job titles, or outdated assumptions.

This session will help you look more critically at how positions are classified, what information should be examined before relying on an exemption, and where employers are most likely to make mistakes. You will gain a clearer understanding of how duties, discretion, authority, supervision, job descriptions, and actual day-to-day responsibilities affect the analysis.

Janette S. Levey’s employment-law experience adds practical value to the discussion. Drawing on more than 20 years of legal experience, she will help attendees understand how these issues are viewed when classifications are questioned, challenged, or investigated, so you can make better-supported decisions before an overtime problem becomes a legal one.

Who will benefit?

This webinar is designed for professionals responsible for employee classification, wage-and-hour compliance, payroll administration, job evaluation, and employment-law risk. It will be especially valuable to those who review or influence exempt and non-exempt decisions, including:

• Human Resources Directors
• Human Resources Managers
• HR Business Partners
• HR Generalists
• Compensation Directors
• Compensation Managers
• Compensation & Classification Specialists
• Payroll Directors
• Payroll Managers
• Payroll Compliance Specialists
• Total Rewards Leaders
• Employment Law Counsel
• In-House Labor & Employment Attorneys
• Employee Relations Managers
• Labor Relations Managers
• Wage & Hour Compliance Professionals
• Compliance Officers
• HR Compliance Managers
• Job Evaluation / Job Classification Specialists
• People Operations Leaders