Are Executive Assistants Exempt From Overtime?

Executive assistants are not automatically exempt from overtime. Whether an executive assistant is exempt from overtime under the Fair Labor Standards Act depends on two things working together: the assistant must earn at least $684 per week on a salary basis, and the actual work they do must meet a specific duties test.¹ Fail either test and the assistant is non-exempt, which means time-and-a-half for every hour worked beyond 40 in a workweek.² The job title itself carries no legal weight.

The Word “Executive” in the Title Is Misleading

The FLSA has separate white-collar exemptions for executive, administrative, and professional employees. Despite the name, executive assistants are almost always analyzed under the administrative exemption, not the executive one. The executive exemption requires the employee to manage the business or a department, regularly direct at least two full-time employees, and have real input into hiring and firing.³ Executive assistants support a manager; they don’t usually manage anyone.

The administrative exemption covers employees whose main work involves running or servicing the business and who exercise discretion and independent judgment on significant matters.⁴ The federal regulations specifically name executive assistants and assistants to senior executives as employees who can meet this exemption, but only when they have been given genuine authority over matters of significance without needing step-by-step instructions.⁵

The Salary Requirement

The dollar threshold comes first. If an executive assistant earns less than $684 per week (about $35,568 per year), they are non-exempt no matter what their duties look like. In 2024, the Department of Labor issued a rule that would have raised the floor to $844 per week in July 2024 and $1,128 per week in January 2025. A federal district court in Texas vacated that entire rule on November 15, 2024, and the vacatur applied nationwide. The DOL is currently enforcing the 2019 threshold of $684 per week.¹ The appeal is still pending as of early 2026, so this number could move.

Meeting the amount is not enough. The assistant must also be paid on a “salary basis,” meaning a fixed, predetermined amount each pay period that does not shrink because of how many hours the assistant worked or how well a particular task went. The full salary must be paid for any week in which the assistant does any work.⁶ Docking pay because the assistant left two hours early on a slow day, or because the office closed for weather, can destroy the exemption. Full-day absences for personal reasons and unpaid disciplinary suspensions for serious workplace conduct are among the narrow exceptions that allow deductions.

The Duties Test

Assuming the salary requirement is met, the harder question is what the assistant actually does. Regulators look at the assistant’s “primary duty,” meaning the principal or most important responsibility, not simply what takes the most hours.⁷ Several factors go into that determination, weighed together:

How much time the assistant spends on exempt-level work. More than half the workweek usually satisfies the test, but less than half does not automatically disqualify the assistant.
How important the exempt tasks are compared to the routine ones.
How much oversight the assistant works under. Less supervision points toward exempt status.
How the assistant’s pay compares to non-exempt employees doing similar routine tasks.

No single factor decides the question.⁸

Running or Servicing the Business

For the administrative exemption, the primary duty must be office or non-manual work directly related to the general business operations of the employer, as opposed to producing or delivering what the business sells.⁴ Finance, human resources, budgeting, compliance, marketing, public relations, and similar functions all count.⁷

An executive assistant who manages the CEO’s investor relations calendar, coordinates board meeting logistics that involve strategic decisions, or handles sensitive personnel matters is doing this kind of work. An assistant who mostly answers phones, processes mail, books routine travel, and enters data into spreadsheets is doing clerical work, and clerical work does not satisfy the administrative exemption regardless of how senior the boss is.

Discretion and Independent Judgment

The most disputed piece of the analysis is whether the assistant exercises discretion and independent judgment on matters of significance.⁹ This means real evaluation between real options that meaningfully affect the business, not choosing from a pre-approved menu or following a manual.

Indicators of true discretion drawn from the regulations include whether the assistant can:

Waive or deviate from established policy without prior approval.
Negotiate or commit the employer on matters with real financial consequences.
Provide expert consultation or recommendations that shape business decisions.
Investigate and resolve significant issues on behalf of leadership.

An assistant selecting vendors for a major corporate event by weighing budget, quality, and business relationships is exercising discretion. An assistant recording meeting notes or following a script for phone calls is not. The regulations specifically exclude clerical, secretarial, recording, and routine repetitive work from counting.⁹

“Matters of significance” refers to consequence, not volume. Managing a $50,000 event budget with authority to make spending decisions is significant. Ordering $50 in office supplies each week from a pre-approved vendor list is not.

The Highly Compensated Employee Shortcut

An easier path exists for well-paid assistants. Executive assistants who earn at least $107,432 in total annual compensation can qualify under the highly compensated employee test. They still need to earn $684 per week on a salary basis and perform office or non-manual work, but instead of meeting every element of the full administrative duties test, they only need to “customarily and regularly” perform at least one duty that would qualify under the executive, administrative, or professional exemption.¹⁰

“Customarily and regularly” means more than occasionally: a recurring part of the job, not a one-time assignment. The 2024 rule would have raised this threshold to $151,164 per year, but that increase was vacated with the rest of the rule.¹

Your State May Set a Higher Salary Floor

The federal $684-per-week number is a floor. California, New York, Washington, and Colorado are among the states that require a higher minimum salary before any employee can be classified as exempt, with thresholds reaching roughly $80,000 annually in some jurisdictions. Some cities and counties set even higher minimums. If your state requires more, your employer must meet the state number, not just the federal one. Check your state labor department’s website for the current figure.

What Non-Exempt Status Actually Means

If the analysis lands on non-exempt, the assistant is entitled to time-and-a-half for every hour past 40 in a workweek. Two categories of hours frequently get overlooked.

Travel during the workday counts. Going between offices, heading to an off-site meeting, or accompanying an executive to a client visit is compensable time toward the 40-hour threshold.¹¹ Overnight travel counts as work time during the assistant’s normal working hours even on days they would not ordinarily work, such as weekends. A normal daily commute does not count.

Training, meetings, and lectures count as paid hours unless all four of these conditions are met: the attendance is outside normal hours, it is truly voluntary, the content is not directly related to the job, and the employee does no other work during the session.¹¹ Miss even one condition and the time is compensable. For assistants who regularly accompany senior leaders to conferences and off-site events, this adds up.

The Cost of Getting It Wrong

An employer who treats a non-exempt executive assistant as exempt owes all the unpaid overtime. Federal law adds an equal amount in liquidated damages, effectively doubling the bill, and requires the employer to pay the employee’s reasonable attorney’s fees and court costs.¹²

The statute of limitations is two years from the date each unpaid overtime payment was due. If the violation was willful, meaning the employer knew or showed reckless disregard for whether the classification was right, that window extends to three years.¹³ For willful or repeated violations, the DOL can also impose civil money penalties of up to $2,515 per violation.¹⁴

One misclassified executive assistant often signals a broader problem, and the DOL can investigate all similarly situated employees. An employee can file a complaint with the Wage and Hour Division or bring a private lawsuit that other employees in the same position can join.

1
U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption
2
U.S. Department of Labor. Fact Sheet 17A – Exemption for Executive, Administrative, Professional, Computer and Outside Sales Employees Under the FLSA
3
U.S. Department of Labor. Fact Sheet 17B – Exemption for Executive Employees Under the FLSA
4
eCFR. 29 CFR 541.200 – General Rule for Administrative Employees
5
eCFR. 29 CFR 541.203 – Administrative Exemption Examples
6
eCFR. 29 CFR Part 541 Subpart G – Salary Requirements
7
U.S. Department of Labor. Fact Sheet 17C – Exemption for Administrative Employees Under the FLSA
8
eCFR. 29 CFR 541.700 – Primary Duty
9
eCFR. 29 CFR 541.202 – Discretion and Independent Judgment
10
U.S. Department of Labor. Fact Sheet 17H – Highly-Compensated Employees and the Part 541 Exemption Under the FLSA
11
U.S. Department of Labor. Fact Sheet 22 – Hours Worked Under the FLSA
12
Office of the Law Revision Counsel. 29 USC 216 – Penalties
13
Office of the Law Revision Counsel. 29 USC 255 – Statute of Limitations
14
U.S. Department of Labor. Civil Money Penalty Inflation Adjustments