FLSA Non-Exempt Employees: Your Complete Guide to Rights and Requirements

The classification for employees who are covered by the overtime and minimum wage provisions of the Fair Labor Standards Act. They must be paid for all hours worked, including overtime.
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What Does "Non-Exempt" Mean?

Under the Fair Labor Standards Act, non-exempt employees are workers who are entitled to FLSA protections, including minimum wage and overtime pay. The term "non-exempt" means these employees are NOT exempt from the FLSA's wage and hour requirements.

All work is considered non-exempt until an employer completes an exemption test to document why overtime isn't required. In other words, non-exempt status is the default.

Being non-exempt is not a negative designation despite how it might sound. It simply means the employee receives the full protections of federal wage and hour law.

Key Characteristics of Non-Exempt Employees

Entitled to Overtime Pay

Non-exempt employees must be paid overtime of at least time-and-a-half their regular rate for all hours worked over 40 in a workweek. This is the most significant protection distinguishing non-exempt from exempt employees.

Minimum Wage Protection

All non-exempt employees must receive at least the federal minimum wage ($7.25/hour as of 2025) or the applicable state/local minimum wage, whichever is higher, for every hour worked.

Time Tracking Required

Employers must accurately track all hours worked by non-exempt employees to calculate proper pay and overtime. This includes start times, end times, meal breaks, and total hours per day and week.

Recordkeeping Protections

The FLSA requires detailed recordkeeping for non-exempt employees, creating a paper trail that protects workers if wage disputes arise.

Types of Non-Exempt Employees

Non-exempt status isn't limited to hourly workers. Several payment structures can result in non-exempt classification:

Hourly Non-Exempt (Most Common)

Employees paid by the hour for time worked. This is the traditional and most straightforward non-exempt structure.

Examples:

Salaried Non-Exempt

Employees paid a fixed salary but still entitled to overtime. Covered in detail in our salaried non-exempt employee article.

Examples:

Commission Non-Exempt

Employees paid partially or entirely on commission but still subject to minimum wage and overtime requirements.

Piece-Rate Non-Exempt

Workers paid per unit produced but still entitled to minimum wage for all hours worked and overtime pay.

Non-Exempt Employee Rights

Overtime Compensation

Non-exempt employees must receive 1.5 times their regular rate for hours over 40 in a workweek. Some states require overtime in additional circumstances, such as:

The overtime rate applies to the employee's "regular rate," which includes most forms of compensation (base pay, non-discretionary bonuses, shift differentials, etc.).

Minimum Wage

Every hour worked must be compensated at or above minimum wage. If an employee's total compensation divided by total hours worked falls below minimum wage, the employer violates the FLSA.

Compensable Time

Non-exempt employees must be paid for all time they are "suffered or permitted to work," including:

Meal Break Rights

Bona fide meal breaks of 30 minutes or more are not compensable if the employee is completely relieved of duties. However, many states have specific meal break requirements that go beyond federal law.

Protection from Retaliation

Non-exempt employees cannot be retaliated against for:

Record Access

Non-exempt employees have the right to access their own time and pay records.

Employer Obligations for Non-Exempt Employees

Accurate Time Tracking

Employers must maintain accurate records showing:

These records must be preserved for at least three years.

Overtime Approval and Payment

Even if overtime wasn't authorized in advance, if a non-exempt employee works the hours, they must be paid. Employers can discipline employees for working unauthorized overtime, but cannot withhold payment for hours actually worked.

Preventing Off-the-Clock Work

Employers must ensure non-exempt employees don't perform unpaid work, including:

All work time must be tracked and compensated.

Proper Break Practices

Salary Deductions (If Applicable)

For salaried non-exempt employees, employers must be careful about salary deductions. Unlike exempt employees, non-exempt employees' pay can be docked for partial-day absences, but this can be complex depending on state law.

Common Compliance Issues

Off-the-Clock Work

One of the most frequent violations is non-exempt employees performing work without recording it. This includes:

Solution: Establish clear policies prohibiting off-the-clock work and enforce time tracking requirements.

Improper Overtime Calculations

Employers sometimes calculate overtime incorrectly by:

Solution: Understand overtime calculation rules and audit payroll regularly.

Compensatory Time in Private Sector

Private sector employers cannot offer "comp time" instead of overtime pay. Overtime must be paid as money in the same pay period it's earned. (Note: public sector has different rules).

Misclassification as Exempt

The most costly mistake is incorrectly classifying non-exempt employees as exempt, thereby denying them overtime pay. This is covered extensively in our overtime exemptions article.

Rounding Time

While time rounding is permitted, it must be neutral and not systematically shortchange employees. The Department of Labor scrutinizes time rounding practices closely.

Managing Non-Exempt Employees

Time Tracking Systems

Implement reliable systems for tracking time:

Whatever system you use, ensure it:

Overtime Management

Control overtime costs while staying compliant:

Remember: you can require approval before working overtime, but if an employee works unauthorized overtime, you must pay them (and can discipline them for the policy violation).

Communication

Non-exempt employees should understand:

Training Managers

Supervisors of non-exempt employees need training on:

State and Local Considerations

Many states and cities have wage and hour laws that provide greater protections than the FLSA. When federal and state/local laws differ, employers must apply whichever standard is more favorable to the employee.

State Overtime Rules

Some states require overtime in circumstances beyond the federal 40-hour threshold:

Higher Minimum Wages

Many states and localities set minimum wages above the federal $7.25. Employers must pay the higher rate.

Meal and Rest Break Requirements

Several states mandate specific meal and rest breaks:

Scheduling Laws

Some jurisdictions have predictive scheduling laws requiring advance notice of schedules and penalties for last-minute changes, which is particularly important for non-exempt workers.

Non-Exempt vs. Part-Time

Part-time status is separate from exempt/non-exempt classification. You can have:

Job duties and salary, not hours, determine exempt vs. non-exempt status. See our article on exempt vs. non-exempt employees for a detailed comparison.

Best Practices

Classify Conservatively

When in doubt about whether a position qualifies for exemption, classify it as non-exempt. The cost of paying occasional overtime is far less than the liability of misclassification.

Audit Regularly

Review non-exempt classifications periodically:

Document Policies

Maintain clear, written policies on:

Use Technology

Technologies with scheduling and communication capabilities can help manage non-exempt workers by:

Foster Compliance Culture

Create a workplace where:

The Bottom Line

FLSA non-exempt status is the default classification for most employees. It entitles workers to critical protections: minimum wage, overtime pay, accurate timekeeping, and detailed recordkeeping.

Employers must understand their obligations to non-exempt employees: track time accurately, pay overtime properly, prevent off-the-clock work, and maintain detailed records. The consequences of non-compliance, including but not limited to back wages, liquidated damages, penalties, and attorney's fees, can far exceed the cost of proper compliance.

Non-exempt status isn't inferior to exempt status; it's simply different. Non-exempt employees receive wage and hour protections that exempt employees don't have. Understanding these rights and obligations is fundamental to fair pay practices and legal compliance.

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