FLSA Overtime and Salary Threshold in 2026: Exempt Status, State Rules, and Payroll Fix
Test in Order: Salary → Duties → State
- Salary basis and level.
- Duties prong by exemption.
- Highest state threshold wins.
Pair with Payroll Guide, Multi-State, 1099 vs W-2, and Payroll Year-End.
Controls
- Timekeeping for non-exempt, no off-clock work.
- Duties questionnaire on hire and promotion.
- Threshold watchlist by state, reviewed semi-annually — see Compliance Checklist.
- Back-pay calculation with preparer/reviewer sign — see Month-End Close.
Link to Wage-Hour Guide for baseline and Internal Controls for remediation.
Duties Tests in Practice (With Examples)
| Exemption | Duties test (federal) | Pass example | Fail example |
|---|---|---|---|
| Executive | Manage 2+ FTEs, hire/fire authority | Engineering manager with 5 reports and firing authority | “Team lead” with no reports who only assigns tickets |
| Administrative | Discretion on significant matters | HR manager setting leave policy | Payroll clerk processing timesheets per script |
| Professional | Advanced knowledge, prolonged study | CPA designing tax positions | Bookkeeper coding invoices to fixed rules |
| Computer | Systems analysis/programming | Software engineer architecting services | Help-desk resetting passwords per runbook |
| Outside sales | Customarily away from office selling | Field rep calling on customer sites | Inside SDR on phones all day |
Two traps catch startups: (1) giving a senior title to a junior individual contributor — title never decides; (2) the computer exemption’s hourly-rate alternative, which has its own threshold and still requires duties. Document the analysis per role with actual task percentages, not the job posting — see 1099 vs W-2 for the parallel classification discipline.
State Threshold Watchlist (Check January and July)
| State | Posture vs federal | Action |
|---|---|---|
| California | Higher salary test + strict duties | Re-test every exempt role annually |
| New York | Higher, varies by size/location | Track NYC vs rest-of-state |
| Washington | Indexed, rises yearly | Calendar July updates |
| Colorado | Higher, migrates toward top | Confirm current-year figure |
| Alaska, Maine, others | Above federal at various levels | Check on every new hire state — see Multi-State |
Put the watchlist in the Compliance Checklist semi-annual review. A single remote hire in a high-threshold state can flip exempt statuses overnight.
Correction Workflow (When You Find a Miss)
- Stop the bleeding. Reclassify prospectively from the next pay period; fix timekeeping so hours are captured.
- Quantify. Reconstruct hours (time system, badge, calendar, manager attestation in that order of reliability) × 1.5 × regular rate, plus state daily-overtime and meal-period premiums where applicable.
- Pay and document. True-up with interest where required, memo root cause (duties drift is the usual one — the role outgrew the exemption), and retain the calculation with preparer/reviewer sign — see Month-End Close.
- Prevent recurrence. Duties questionnaire on every promotion and annual re-certification of exempt roles. Voluntary correction before a complaint or audit dramatically reduces penalties — coordinate with counsel on privilege for the memo.
FAQ
Do startups get an exemption?
No size exemption for overtime; small-business coverage rules differ by statute — confirm with counsel.
What documentation survives audit?
Duties analysis, salary records, time logs, and correction memos per Audit Procedures.
Next Steps
- Re-test all exempt roles against duties + state threshold now.
- Fix timekeeping before next payroll.
- Calendar semi-annual threshold review.