Current through August 26, 2024
Except as provided in s.
DWD 274.08, each employer subject to ch. DWD 274 shall be
exempt from the overtime pay requirements in s.
DWD 274.03 and these
exemptions shall be interpreted in such a manner as to be consistent with the
Federal Fair Labor Standards Act and the Code of Federal Regulations as
amended, relating to the application of that act to all issues of overtime in
respect to the following employees:
(1) Persons whose primary duty consists of
administrative, executive or professional work.
(a) "Executive" means an employee employed in
a bona fide executive capacity who meets the following criteria:
1. Whose primary duty consists of the
management of the enterprise in which they are employed or of a customarily
recognized department of subdivision thereof; and
2. Who customarily and regularly directs the
work of 2 or more other employees therein; and
3. Who has the authority to hire or fire
other employees or whose suggestions and recommendations as to the hiring or
firing and as to the advancement and promotion or any other change of status of
other employees will be given particular weight; and
4. Who customarily and regularly exercises
discretionary powers; and
5. Who
does not devote more than 20%, or in the case of an employee of a retail or
service establishment who does not devote as much as 40%, of their hours of
work in the workweek of activities which are not directly and closely related
to the performance of the work described in subds. 1. through 4. provided, that
this paragraph shall not apply in the case of an employee who is in sole charge
of an independent establishment or a physically separated branch establishment,
or who owns at least a 20% interest in the enterprise in which he is employed;
and
6. Who is compensated for their
services on a salary basis at a rate of not less than $700 per month.
(b) "Administrative" means an
employee employed in a bona fide administrative capacity who meets the
following criteria:
1. Whose primary duty
consists of the performance of office or nonmanual work directly related to
management policies or general business operations of their employer or their
employer's customers, or
2. Who
customarily and regularly exercises discretion and independent judgment;
and
3.
a. Who regularly and directly assists a
proprietor, or an employee employed in a bona fide executive or administrative
capacity; or
b. Who performs under
only general supervision work along specialized or technical lines requiring
special training, experience, or knowledge, or
c. Who executes under only general
supervision special assignments and tasks; and
4. Who does not devote more than 20%, or in
the case of an employee of a retail or service establishment who does not
devote as much as 40%, of their hours worked in the workweek to activities
which are not directly and closely related to the performance of the work
described in subds. 1. through 3.; and
5. Who is compensated for their services on a
salary or fee basis at a rate of not less than $700 per month.
(c) "Professional" means an
employee employed in a bona fide professional capacity who meets the following
criteria:
1. Whose primary duty consists of
the performance of:
a. Work requiring
knowledge of an advance type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction and
study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual,
or physical processes, or
b. Work
that is original and creative in character in a recognized field of artistic
endeavor (as opposed to work which can be produced by a person endowed with
general manual or intellectual ability and training), and the result of which
depends primarily on the invention, imagination, or talent of the employee,
or
2. Whose work
requires the consistent exercise of discretion and judgment in its performance;
and
3. Whose work is predominantly
intellectual and varied in character (as opposed to routine mental, manual,
mechanical or physical work) and is of such character that the output produced
or the result accomplished cannot be standardized in relation to a given period
of time; and
4. Who does not devote
more than 20% of their hours worked in the workweek to activities which are not
an essential part of and necessarily incidental to the work described in subs.
(1) through (3); and
5. Who is
compensated for services on a salary or fee basis at a rate of not less than
$750 per month.
(2) An employee who meets all of the
following conditions:
(a) The employee's
primary duty, as determined under
29 CFR
541.500(b), is any of the
following:
1. Making sales, as defined under
29
USC 203(k).
2. Obtaining orders or contracts for services
or for the use of facilities for which a consideration will be paid by the
client or customer.
(b)
The employee is customarily and regularly engaged away from the employer's
place of business, as described under
29 CFR
541.502, in performing the employee's primary
duty described under par. (a).
(3) Higher paid commission employees of
retail and service establishments if a) 50% of earnings is from commission, and
b) time and one-half of minimum wage is received for all hours
worked.
(4) Drivers, driver's
helpers, loaders or mechanics of a motor carrier or a private or contract
carrier who are covered under the provisions of section 204 of the Motor
Carrier Act 1935 as amended. Any employee of an employer engaged in the
operation of a common carrier by rail and subject to the provision of Part I of
the Interstate Commerce Act as amended and any employee of a carrier by air
subject to the provision of the Railway Labor Act as amended.
(5) Drivers of taxi cabs.
(6) Time spent in related classroom
instruction by indentured apprentices need not be counted as work time for the
purpose of computing overtime.
(7)
Parts persons, salespersons, service managers, service writers, or mechanics
selling or servicing automobiles, trucks, farm implements, trailers, boats,
motorcycles, snowmobiles, other recreational vehicles or aircraft, when
employed by a nonmanufacturing establishment primarily engaged in selling such
vehicles to ultimate purchasers.
(8) Any employee employed by an establishment
which is an amusement or recreational establishment, if a) it does not operate
for more than 7 months in any calendar year, or b) if during the preceding
calendar year, its average receipts for any 6 months of such year were not more
than 33 1/ 3% of its average receipts for the other 6 months of such year. This
rule shall be construed in such manner as to be in conformity with any
comparable federal statute or regulation.
(9) Persons employed in agriculture including
farming in all its branches, including, among other things, the cultivation and
tillage of the soil, dairying, the production, cultivation, growing, and
harvesting of any agricultural or horticultural commodities, the raising of
livestock, bees, furbearing animals, or poultry, and any practices performed by
a farmer or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to market
or to carriers for transportation to market.
(10) Employees employed in any motion picture
theater.
(11) Employees of a
hospital or other institutions primarily engaged in the care of the sick, the
aged, the mentally ill or persons with developmental disabilities who reside on
the premises may have an agreement between the employer and the employee before
performance of the work for the purpose of overtime computation. A work period
of 14 consecutive days is accepted in lieu of the workweek of seven consecutive
days for purposes of overtime computation if time and one-half the regular rate
of pay is paid for all hours worked in excess of eight hours per day and 80
hours within the 14 day period.
(12) Employees employed as a driver or
driver's helper making local deliveries, who are compensated for such
employment on the basis of trip rates or other delivery payment plan, if each
plan has the general purpose and effect of reducing hours worked by such
employees to, or below, the maximum workweek applicable to them.
(13) Employees employed in any funeral
establishment.
(14) Any employee
employed in the following forestry or lumbering operations, if the number of
employees employed by the employer in the operation does not exceed 8:
(a) Planting or tending trees, cruising,
surveying or felling timber;
(b)
Preparing logs or other forestry products; or
(c) Transporting logs or other forestry
products to a mill, processing plant or railroad or other transportation
terminal.
(15) Any
employee who is a computer systems analyst, computer programmer, software
engineer, or other similarly skilled worker, who, in the case of an employee
who is compensated on an hourly basis, is compensated at a rate of not less
than $27.63 an hour, and whose primary duty is one of the following:
(a) The application of systems analysis
techniques and procedures, including consulting with users, to determine
hardware, software, or system functional specifications.
(b) The design, development, documentation,
analysis, creation, testing or modification of computer systems or programs,
including prototypes, based on and related to user or system design
specifications.
(c) The design,
documentation, testing, creation or modification of computer programs related
to machine operating systems.
(d) A
combination of the duties described in pars. (a), (b) and (c), the performance
of which requires the same level of skills.
This provision is intended to be interpreted in a manner
consistent with
29
USC
213(a)(17).
