Am I Exempt from Overtime in New York?

You're only exempt from overtime in New York if you meet both a salary test and a duties test. For 2026, you must earn at least $58,458-$62,400 per year (depending on location) and your primary job duties must be executive, administrative, or professional work. Job titles don't determine exemption—the law looks at what you actually do.

If you don't meet both tests, you're entitled to overtime pay at 1.5 times your regular rate for all hours over 40 per week, regardless of your job title or salary.

Why Exemption Classification Matters

Exempt employees don't receive overtime pay. This can cost you thousands of dollars per year if you work more than 40 hours weekly.

Impact of misclassification:

• Working 50 hours/week at $25/hour
• If non-exempt: You'd earn $1,375/week (40 regular + 10 overtime at 1.5x)
• If exempt: You'd earn $1,250/week (50 hours at straight time)
• Difference: $125/week = $6,500/year

Many employers misclassify workers as exempt to avoid paying overtime. They give workers impressive job titles like "manager" or pay them a salary, thinking this makes them exempt. It doesn't.

Understanding exemption rules helps you determine if you're being paid correctly. Thousands of New York workers are owed years of unpaid overtime because they were improperly classified as exempt.

The Two-Part Test for Exemption

To be exempt from overtime, you must pass both tests:

Test 1: Salary Basis Test

You must be paid a predetermined salary that doesn't vary based on hours or quality of work.

Requirements:

• Paid on salary basis (not hourly)
• Salary doesn't decrease based on hours worked
• Salary doesn't increase for working extra hours
• Receive full salary for any week you perform work (with limited exceptions)

Exceptions to full salary requirement:

• First and last week of employment (can be prorated)
• Unpaid disciplinary suspension for violating workplace conduct rules (full-day increments only)
• Unpaid leave under FMLA
• Unpaid leave to serve on jury duty, as witness, or for military service (employer can offset any fees received)

What breaks salary basis:

• Deductions for partial-day absences (like leaving 2 hours early)
• Docking pay for poor performance
• Reducing salary because work is slow

Example - Salary basis maintained: Sarah earns $65,000/year salary. One week she works 35 hours, another week 55 hours. She receives the same salary both weeks. Salary basis is maintained.

Example - Salary basis violated: Tom earns $60,000/year salary but his employer deducts half a day's pay when he leaves early for a doctor's appointment. This violates salary basis and may make him non-exempt.

Test 2: Salary Level Threshold

You must earn above a minimum salary amount. New York's thresholds are higher than federal law and vary by region.

2026 New York Salary Thresholds:

Federal threshold: $844/week ($43,888/year) as of 2024

Since New York's thresholds are higher, they apply to New York workers.

These thresholds increase annually as New York's minimum wage increases. The salary threshold is tied to minimum wage (75 times the minimum wage).

Example - Above threshold: Michael earns $70,000/year in Albany ($1,346/week). He's above the $1,124.20 threshold for rest of state. He passes the salary level test (but must still pass the duties test).

Example - Below threshold: Lisa earns $55,000/year in Manhattan ($1,058/week). She's below the $1,200 threshold for NYC. She automatically fails the exemption test and is entitled to overtime, regardless of her duties.

Test 3: Duties Test

Even if you meet the salary requirements, you must perform exempt duties. There are three main categories of exempt duties: executive, administrative, and professional.

You only need to meet one category.

Executive Exemption

To qualify as an exempt executive, your primary duty must be managing the business or a recognized department or subdivision.

Requirements (must meet all):

1. Primary duty is management:

• Your main job function is managing
• Managing means activities like interviewing, selecting, training, directing work, disciplining, planning, budgeting, etc.
• "Primary duty" generally means more than 50% of your time

2. Regularly supervise at least two full-time employees (or equivalent):

• "Regularly" means consistent, recurring supervision
• Two part-time employees can equal one full-time employee
• Must be genuine supervision, not just working alongside others

3. Authority to hire and fire OR significant input on employment decisions:

• You make recommendations that are given "particular weight"
• Your input on hiring, firing, promotions, or discipline matters
• You don't need final authority, but your opinion must be valued

Example - Qualifies as exempt executive: Tom manages a retail store in Brooklyn. He earns $70,000/year, supervises 12 employees, creates work schedules, conducts performance reviews, makes hiring recommendations that are usually followed, and can fire employees with approval from corporate. He spends 60% of his time on management duties and 40% helping on the floor. He qualifies as an exempt executive.

Example - Does NOT qualify (misclassified): Lisa is called an "assistant manager" at a fast food restaurant. She earns $52,000/year. She works the same positions as regular crew members 80% of the time (cooking, register, cleaning). She occasionally supervises when the general manager is absent but has no input on hiring or firing. She's not an exempt executive because she fails both the salary test ($52,000 < $62,400 NYC threshold) and the duties test (management is not her primary duty).

Red flags for misclassification:

• You spend most of your time doing the same work as non-exempt employees
• You have a manager title but no real authority
• You don't supervise at least two people regularly
• Your recommendations on employment decisions are ignored

Administrative Exemption

To qualify as an exempt administrative employee, your primary duty must be office or non-manual work directly related to management or general business operations.

Requirements (must meet all):

1. Primary duty is office/non-manual work:

• Not production work
• Not sales
• Supporting business operations rather than producing the product or service

2. Work is directly related to management or general business operations:

• Functions like accounting, finance, HR, legal, marketing, purchasing, public relations, quality control
• Supporting the business operations, not the production line

3. Exercise discretion and independent judgment on significant matters:

• You make decisions that have real impact
• You're not just following a manual or procedures
• You have authority to make independent choices
• The matters are important to the business

"Discretion and independent judgment" means:

• Comparing and evaluating possible courses of action
• Making decisions based on analysis
• Having authority to act without immediate supervision
• Decisions affect business operations significantly

Example - Qualifies as exempt administrative: Karen works in HR for a company in Albany. She earns $65,000/year. She develops hiring policies, investigates discrimination complaints, makes recommendations on disciplinary actions that are usually followed, and designs benefits programs. She exercises significant discretion on important matters. She qualifies as exempt administrative.

Example - Does NOT qualify (misclassified): Marcus is called an "office coordinator." He earns $55,000/year in Manhattan. He schedules appointments, files documents, processes paperwork according to established procedures, and escalates any issues to his supervisor. He follows detailed instructions and has no decision-making authority. He's not exempt because he doesn't exercise discretion and independent judgment, and he's below the NYC salary threshold.

Red flags for misclassification:

• You follow detailed procedures or a manual
• You can't make decisions without supervisor approval
• Your work is routine and repetitive
• You're in a support role but not making policy decisions

Professional Exemption

The professional exemption has two categories: learned professionals and creative professionals.

Learned Professional

Requirements (must meet all):

1. Primary duty requires advanced knowledge:

• Intellectual work requiring consistent exercise of discretion and judgment
• Not routine mental, manual, or physical work

2. Advanced knowledge in a field of science or learning:

• Work requires specialized academic training
• Fields like law, medicine, engineering, accounting, actuarial science, architecture, teaching

3. Advanced knowledge customarily acquired through prolonged specialized education:

• Generally requires a bachelor's degree or higher
• Specialized academic training beyond high school

Example - Qualifies as learned professional: Dr. Smith is a physician at a hospital in Queens earning $150,000/year. She's an exempt learned professional.

Example - Does NOT qualify: Jake is a medical assistant earning $48,000/year. He has a two-year degree and performs clinical tasks. While skilled, his position doesn't require advanced knowledge in a field of science customarily acquired through prolonged specialized education. He's not exempt.

Common learned professional positions:

• Lawyers
• Doctors, dentists, veterinarians
• Registered nurses (sometimes—depends on duties)
• Licensed engineers and architects
• Certified public accountants
• Teachers (special rules apply)
• Scientists

Creative Professional

Requirements (must meet all):

1. Primary duty requires invention, imagination, originality, or talent:

• Creative and original work
• Not routine or following templates

2. In a recognized field of artistic or creative endeavor:

• Music, writing, acting, graphic arts, journalism, etc.
• Recognized artistic fields

Example - Qualifies as creative professional: Amanda is a composer earning $70,000/year creating original music. She's a creative professional.

Example - Does NOT qualify: Kevin is a graphic designer earning $60,000/year in NYC creating basic graphics using company templates with little creative input. His work doesn't require invention, imagination, or originality. He's not exempt.

Red flags for misclassification:

• You follow templates without creative input
• Your work is routine, not original
• You don't have a specialized degree in your field

Computer Employee Exemption

Computer professionals can be exempt if they meet the salary threshold (or earn at least $58.50/hour) and their duties involve:

Qualifying duties:

• Systems analysis, design, and development
• Computer program design, development, documentation, testing, or modification
• Creating or modifying computer operating systems or programs

Example - Qualifies: A software engineer earning $90,000/year designing database architecture and developing complex software systems is exempt.

Example - Does NOT qualify: A help desk technician earning $55,000/year troubleshooting computer problems and installing software is not exempt.

Red flag: Job titles like "computer professional" or "IT specialist" don't automatically create exemption. The work must involve systems analysis, design, or development.

Outside Sales Exemption

Outside sales employees are exempt with no salary requirement if:

Requirements:

• Primary duty is making sales or obtaining orders/contracts
• Customarily and regularly work away from the employer's place of business

Example - Qualifies: A pharmaceutical sales representative visiting doctors' offices to sell products is exempt.

Example - Does NOT qualify: An inside sales person making sales calls from the office is not exempt under this category (though might be under others if they meet salary and duties tests).

Highly Compensated Employee Exemption

The federal FLSA has a highly compensated employee exemption (earning $132,964+ in 2024). However, New York doesn't recognize this exemption. You must meet the full duties test regardless of how much you earn.

Example: A worker earning $150,000/year in New York still must meet the full executive, administrative, or professional duties test to be exempt.

What "Primary Duty" Means

Your "primary duty" is your principal, main, major, or most important duty.

Factors to determine primary duty:

• Time: How much time you spend on exempt vs. non-exempt duties (generally, primary duty should be 50%+ of your time)
• Importance: The relative importance of the exempt duties
• Frequency: How often you perform exempt duties
• Freedom from supervision: Your degree of independence
• Relationship to others' work: Are you managing others or doing production work?
• Pay level: Does your pay reflect the importance of exempt work?

Example - Primary duty is exempt: A restaurant manager spends 45% of her time on management tasks (scheduling, inventory, hiring, training) and 55% of her time waiting tables and cooking. However, the management tasks are her most important duties and the reason she's paid more than other workers. Her primary duty is management.

Example - Primary duty is NOT exempt: An "assistant manager" at a retail store spends 90% of her time doing the same sales and stocking work as hourly employees and only 10% supervising when the manager is absent. Her primary duty is non-exempt sales work, not management.

Common Misclassification Scenarios

The "Manager" Who Isn't

Scenario: Workers given manager titles but spend most time doing non-exempt work.

Example: "Assistant manager" at a fast food restaurant who works the register, cooks, and cleans 90% of the time. Not exempt.

Why: Primary duty is not management. Job title doesn't matter.

The Low-Paid "Exempt" Employee

Scenario: Workers earning below the salary threshold classified as exempt.

Example: Office worker earning $50,000/year in Manhattan (below $62,400 threshold) classified as exempt. Not exempt.

Why: Fails salary level test automatically.

The "Professional" Who Isn't

Scenario: Workers with professional-sounding titles but without required education or duties.

Example: "Paralegal professional" earning $60,000/year with no advanced degree, following attorney instructions. Not exempt.

Why: Doesn't meet learned professional requirements.

The Misclassified Administrative Worker

Scenario: Office workers who follow procedures without exercising discretion.

Example: Data entry clerk earning $58,000/year labeled "administrative coordinator." Follows strict procedures with no decision-making authority. Not exempt.

Why: Doesn't exercise discretion and independent judgment on significant matters.

The Split-Duty Worker

Scenario: Workers who do some exempt and some non-exempt work.

Example: Retail supervisor spending 50% of time supervising and 50% doing sales. May or may not be exempt depending on which is the "primary duty" considering all factors.

Analysis required: Look at all factors—time, importance, freedom from supervision, pay level, etc.

Real-World Examples: Exemption Classifications

Example 1 - Properly exempt executive: Daniel manages a bank branch in Syracuse. He earns $75,000/year, supervises 8 tellers and loan officers, makes hiring and firing recommendations that are almost always followed, and spends 70% of his time on management tasks. He's properly classified as exempt.

Example 2 - Misclassified "manager": Rebecca is called a "shift manager" at a convenience store. She earns $45,000/year (below threshold), works the register and restocks shelves like regular employees, and has no authority over hiring or firing. She occasionally closes the store and counts the register. She's not exempt and is owed overtime for her 50-hour weeks. After 2 years, she's owed approximately $26,000 in unpaid overtime.

Example 3 - Properly exempt administrative: Angela is an HR business partner earning $80,000/year in Manhattan. She investigates employee complaints, develops policies, makes recommendations on terminations, and designs compensation programs. She exercises significant discretion on important matters. She's properly exempt.

Example 4 - Misclassified "administrative": Mark is an "administrative assistant" earning $52,000/year in Long Island. He schedules meetings, maintains files, and orders supplies following established procedures. He has no decision-making authority. He's not exempt (below $62,400 threshold and doesn't meet duties test). He's owed overtime.

Example 5 - Properly exempt learned professional: Dr. Chen is a dentist earning $180,000/year. She's an exempt learned professional.

Example 6 - Misclassified "professional": Tom is a "graphics professional" earning $58,000/year in NYC. He creates basic marketing graphics using templates with minimal creative input. He's not exempt (below $62,400 threshold and doesn't meet creative professional duties test). After 3 years of 50-hour weeks, he's owed about $35,000 in unpaid overtime.

Example 7 - Properly exempt outside sales: Jessica sells medical equipment, visiting hospitals and clinics across the state. She works independently, sets her own schedule, and is rarely in the office. She's properly exempt as outside sales.

Example 8 - Misclassified based on salary alone: Samantha earns $65,000/year in Buffalo (above the $58,458 threshold). Her employer assumes she's exempt. However, she's a bookkeeper who follows established procedures with no discretion or independent judgment. She's not exempt because she fails the duties test. She's owed overtime.

Example 9 - Retail manager properly exempt: Kevin manages a large retail store, earning $72,000/year. He supervises 20 employees, makes staffing decisions, handles customer escalations, manages inventory and budgets, and spends 60% of his time on management tasks. He's properly exempt as an executive.

Example 10 - Assistant manager misclassified: Maria is an "assistant manager" at a clothing store earning $54,000/year in Queens. She works alongside sales associates doing the same work 85% of the time. She's below the NYC threshold and doesn't meet the executive duties test. She's owed 3 years of overtime totaling $42,000.

What to Do If You're Misclassified as Exempt

If you believe you're improperly classified as exempt:

1. Evaluate your status:

• Check the salary threshold for your region
• Honestly assess your primary duties
• Compare your situation to the duties test requirements
• Don't rely on your job title

2. Track your hours:

• Start keeping a detailed log of hours worked
• Note your actual duties each day
• Document what percentage of time you spend on exempt vs. non-exempt work

3. Calculate what you're owed:

• Count your hours over 40 per week for the past 6 years (or as far back as you can document)
• Calculate your regular hourly rate (annual salary ÷ 2,080 hours)
• Calculate overtime owed (hours over 40 × 0.5 × regular rate)

Example calculation:

• Salary: $55,000/year = $26.44/hour regular rate
• Overtime rate: $39.66/hour
• You typically work 50 hours/week = 10 hours overtime weekly
• Owed per week: 10 hours × $13.22 (half-time) = $132.20
• Over 2 years (104 weeks): $13,749
• With liquidated damages: $27,498

4. Gather evidence:

• Pay stubs showing salary
• Job description
• Documentation of actual duties performed
• Communications showing hours worked and lack of decision-making authority
• Comparison to actual exempt employees at your company

5. Understand your potential recovery:

• Back wages for unpaid overtime
• Liquidated damages (doubling)
• Interest at 9% per year
• Attorney's fees

6. File a claim:

Option A - New York Department of Labor:

• File form LS 223 at dol.ny.gov
• Free process
• NYDOL investigates

Option B - Hire an employment lawyer:

• Many offer free consultations
• Work on contingency (only paid if you win)
• Better for larger claims
• Can recover attorney's fees from employer

7. Know your deadline: You have 6 years under New York law to file a wage claim. Don't wait—evidence degrades over time.

8. Understand retaliation protections: It's illegal for your employer to fire, demote, or retaliate against you for filing a wage claim.

Frequently Asked Questions

Does my job title determine if I'm exempt? No. The law looks at your actual salary and duties, not your title. You can be called a "manager" and still be non-exempt if you don't meet the requirements.

Can my employer reduce my salary to avoid paying overtime? They can reduce your salary going forward (unless you have a contract preventing this), but they cannot retroactively reduce it. If the reduction brings you below the salary threshold, you become non-exempt.

What if I agreed to be salaried and not receive overtime? Your agreement doesn't override the law. If you don't meet the exemption requirements, you're entitled to overtime regardless of what you agreed to.

Can I be partially exempt? No. You're either exempt (no overtime for any hours) or non-exempt (overtime for all hours over 40). There's no partial exemption.

What if I'm salaried but work fewer than 40 hours some weeks? If you're properly exempt, your employer must pay your full salary for any week you perform work (with limited exceptions). If you're non-exempt but salaried, you should be paid your salary for 40 hours and overtime for hours over 40.

Can my employer require me to work 60 hours with no overtime if I'm exempt? Yes, if you're properly exempt. Exempt employees can be required to work any number of hours without overtime pay. This is why misclassification is so costly.

What if my duties changed but my classification didn't? If your duties change so you no longer meet the exemption requirements, you should be reclassified as non-exempt. If your employer doesn't reclassify you, you may be owed overtime.

Do I get overtime if I earn $150,000/year? In New York, yes, if you don't meet the duties test. High pay alone doesn't create exemption. Federal law has a highly compensated exemption, but New York doesn't recognize it.

What about teachers? Teachers have special exemption rules. Generally, certified teachers employed by educational institutions are exempt regardless of salary level.

Can I be exempt in one state but not another? Yes. States have different salary thresholds. You might be exempt under federal law but non-exempt under New York law (because NY thresholds are higher).

Related Topics

For more information about overtime and exemptions in New York, see:

• New York Wages and Hours - Complete guide to NY wage and hour laws
• overtime laws - Overtime rules and calculations
• minimum wage - New York's minimum wage requirements
• unpaid wages - How to recover wages you're owed
• independent contractor misclassification - Employee vs. contractor status
• spread of hours pay - Additional pay for long workdays

Legal Disclaimer

This article provides general information about overtime exemptions in New York. It is not legal advice for your situation. Exemption analysis can be complex, and every case is different. For advice about your specific circumstances, consult an employment attorney or contact the New York Department of Labor. The information here is current as of November 2026 but may not reflect future changes.

Last updated: November 4, 2026