the same level of skills.
Highly Compensated Employees
Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) can more easily meet the white collar exemptions and are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.
The exemptions discussed above apply only to “white collar” employees who meet
the salary and duties tests set forth above. The exemptions do not apply to manual laborers
or other “blue collar” workers who perform work involving repetitive operations with their
hands, physical skill and energy. FLSA-covered, non-management employees in production,
maintenance, construction and similar occupations such as carpenters, electricians,
mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen,
construction workers and laborers are entitled to minimum wage and overtime premium pay
under the FLSA, and are not exempt no matter how highly paid they might be.
Given that an employer may be subject to civil, as well as criminal, penalties for
failure to comply with these statutes, employers are well advised to seek the advice of
competent employment counsel to ensure proper compliance.
Unionization and Concerted Protected Activity∗
All employers, even those whose employees are not unionized, are governed by
certain rules contained in the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169.
The NLRA guarantees employees the right to organize and bargain collectively with their
employers or to refrain from all such activity. Although sometimes misconstrued as applying
∗ The authors wish to thank Andrew J. Orsmond of Foley Hoag and Michael J. Doheny of Segal, Roitman & Coleman for their contribution to this section.