How can an employer figure out what an employee's primary duty is?

Author: Michael Cardman, XpertHR Legal Editor

To determine an employee's primary duty, an employer must first identify the duties the employee actually performs, not the duties listed in the employee's job description or the duties the employee is expected to perform. Techniques that can help employers in this task include: observing the employee in action; reviewing the employee's job description with the employee, having the employee correct any errors, and asking the employee to acknowledge in writing that the job description is accurate and up to date; and interviewing the employee's manager, subordinates and/or colleagues about the employee's job duties.

Once the employer has a firm handle on the employee's many job duties, it is time to determine which of them are his or her primary duty within the meaning of Fair Labor Standards Act regulations. The proportion of time an employee spends on a particular duty is generally a good indicator; a duty that occupies 50 percent or more of the employee's time will generally constitute a primary duty. However, exempt work that occupies less than half of an employee's time can still qualify as his or her primary duty if: it is more important than the employee's other duties; the employee is relatively free from supervision; and the employee is paid more than other employees who do not perform exempt work. An employer also should bear in mind that a combination of exempt duties can constitute an employee's primary duty.

If any questions remain about an employee's primary duty, the employer should consult an attorney.