FLSA2008-1NA — Proration of salary requirement for part-time position and section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-1NA

February 14, 2008

Dear
Name*:

This is in response to your request for an opinion regarding the minimum salary for an
exempt employee under section 13(a)(1) of the Fair Labor Standards Act (FLSA) and 29
C.F.R Part 541.
∗
The Part 541 exemption is not available if the reduced salary falls
below the minimum required by 29 C.F.R. § 541.600(a).

You ask whether the minimum salary of $23,660 per year or $455 per week required
under 29 C.F.R. § 541.600 may be prorated to reflect the part-time status of an employee.
You have provided an example of a full-time employee who is paid a salary of $30,000
annually and whose hours are reduced to 20 hours per week with a commensurate
reduction in salary to $15,000 annually. You state that the employee meets the duties test
for an exempt salaried employee. You ask whether the employee would still be exempt
under section 13(a)(1) of the FLSA at the prorated salary of $15,000.

There is no provision to prorate the salary requirement of $455 per week when an
employee’s hours are reduced. The employee must receive a salary of at least $455 in
each week in which he or she performs any work regardless of the number of days or
hours worked to qualify for the exemption in section 13(a)(1). See Wage and Hour
Opinion Letter
FLSA2006-10NA. It is our opinion that the salary requirement of $455
per week may not be prorated to reflect reduced hours, and the employee paid a salary of
$288 per week does not qualify for the exemption in section 13(a)(1) of the FLSA. A
non-exempt employee, however, may be paid a salary to work 20 hours per week without
violating the provisions of the FLSA if the amount of the salary paid when divided by the
actual number of hours worked (less than 40) equals the equivalent of at least $5.85 per
hour. Whether an employee is paid on an hourly or salary basis is a decision left to the
employer provided that the minimum wage and overtime requirements of the FLSA are
met.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of the question presented. Existence of any other
factual or historical background not contained in your letter might require a conclusion
different from the one expressed herein. You have represented that this opinion is not
sought by a party to pending private litigation concerning the issue addressed herein.

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at www.wagehour.dol.gov.
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You have also represented that this opinion is not sought in connections with an
investigation or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Monty Navarro
Office of Enforcement Policy
Fair Labor Standards Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).

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