DOL Questions about Duties Tests – The Facts

DOL Questions about Duties Tests – The Facts


Recently, there have haven’t been any changes made to the duties testing. This is the testing that sees which employees are exempt from overtime and which are not. This doesn’t mean, however, there won’t be any changes in the near future. According to some of the higher-ups, employees should still keep their eyes peeled

The Department of Labor

What types of things does the DOL look at?


There have been a number of people asking about different type of changes. Many have been asking what is working with the duties testing and what is not.


There has been a number of questions, as of late, about an employee’s primary shifts. If a person wants to be exempt from working the overtime status, how can he or she go about this? Should there be a set number of hours that need to be worked previously, so they can qualify?

Say a person works 50 hours a week. Could that person qualify for the exemption status? If not, how many hours does he/she need to have worked?


Should the law be taken into account? Should the 50 hour work week model be used as an example? Some employees prefer to work on something during “overtime.” This way he/she can get more money. Is this the wrong model to use? Should we include all “proposed” overtime work in the regular 50 hour week? This way we get a chance to see just how productive each worker is. This ideology is mentioned in California Law. Maybe there is something to this.

non-exempt workers


There are two types of tests. There is the long form and the short form. There has been a long-standing question as to the validity of both forms. Do both forms truly make appropriate decisions? Are some workers who should be exempt from overtime duties, actually becoming non-exempt.

There are workers who shouldn’t be pulling the overtime duties because of health reasons. Are these men/women falling through the cracks with these tests? This is something which might need to be looked at. There are some workers who are not fit to be working, who are actually working.


There is also the question of both upper and lower-level employees. Some are exempt and working those non-exempt jobs, while others are the exact opposite. Where are the upper-level workers in all of this? Are there cases where these men/women can pick up the slack? Just because someone is upper-level, doesn’t mean they should automatically be non-exempt.

What about the work itself. Are exempt workers performing non-exempt jobs? Is just the opposite happening in some businesses. This all needs to be looked. Is there a difference between what the tests are showing, and what is actually being done? What types of changes need to be addressed? These types of changes need to be fair to everyone. Are they?

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This is just one of the many comments made by an attorney recently. “We feel that employers need to be ready for certain changes.” These changes could also include an increase in money.

If a person is being asked to do overtime, then he or she needs to be paid the right amount. It’s not fair to any overtime employee to be paid the regular amount he/she normally sees. The pay needs to reflect the job.

At the end of the day, employers need to also have a say in this. It’s not fair to have an exempt employee doing non-exempt work. It’s not fair for some capable workers to be slipping through the cracks like they are.

The tests need to be more strict“, according to one boss. Why? If these tests are not strict, it will mean that some workers will get an unfair advantage. Right now there are employees who are getting out of certain jobs, jobs they are more than capable of doing.

We have to make this fair though,” remarked one CEO. If certain people are getting paid overtime for work, then those people should have a say in their salary. “If this means making changes to the tests, this is what we have to do.




This is one for major debate right now. Insiders have said this needs to be agreed upon across the board. If not, there will be one or two options.

1) The uniform salary based program—which is already in effect.

2) Taking the lower-salary basis program, with the California Law thrown in there. This means the person will need to perform all duties within a 50 hour week. He/she will do this all on a lower salary. At the end of the week, people will know where they stand with the overtime incentive.


Right now a battle is being drawn. Only time will tell how this one comes out. How do you feel about this? Do you feel that a higher salary–without any duties testing–is the way to go? Do you feel this will create more harm than good in the workforce? Let us know in the comments below. Just click on the link.



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