(a)

1. (1) The Minimum Wage Act of the State of Arkansas, Arkansas Code § 11-4-201 et seq., does not apply to any individual employed in a bona fide executive, administrative, or professional capacity or as an outside commission-paid salesperson who customarily performs his or her services away from his or her employer’s premises taking orders for goods or services, Arkansas Code § 11-4-203(3)(A).
2. (2) For the purpose of defining and delimiting this exemption, the Director of the Division of Labor adopts by reference and incorporates herein 29 C.F.R. pt. 541 (July 1, 2005).
3. (3) For the purposes of this exemption, computer employees covered by 29 C.F.R. §§ 541.400 — 541.402 are hereby defined as “professional employees”.
4. (4) For the purposes of this exemption, highly compensated employees covered by 29 C.F.R. § 541.601 are hereby defined as an executive, administrative, or professional employee if the employee customarily and regularly performs any one (1) or more of the exempt duties or responsibilities of an executive, administrative, or professional employee.

5. (5) For the purposes of this exemption, executive or administrative employee includes any individual who:

   1. (A) Holds public elective office in this state;
   2. (B) Is selected by the elected official to be a member of his or her personal staff and is directly supervised by the elected official;
   3. (C) Is appointed by the elected official to serve on a policymaking level; or
   4. (D) Is an immediate adviser to the elected official with respect to the constitutional or legal powers of his or her office.
6. (6) Notwithstanding the provisions of subdivision (a)(2) of this section, the salary level test of 29 C.F.R. § 541.100(a)(1) (executive employees), 29 C.F.R. § 541.200(a)(1) (administrative employees), 29 C.F.R. § 541.300(a)(1) (professional employees), and 29 C.F.R. § 541.400(b) (computer employees), as it applies to charitable and religious organizations, and employers who have gross annual sales of less than five hundred thousand dollars ($500,000) per year, shall be at a rate of at least three hundred sixty dollars ($360) per week on a salary or fee basis.

7. (7)

   1. (A) It is recognized that the primary duties of the following legislative employees require the employees to customarily and regularly perform tasks or work involving the exercise of discretion and independent judgment with respect to matters of significance in the course of assisting members of the General Assembly, and they are professional, executive, or administrative employees for the purpose of this exemption:

(i) Legislative attorneys;

1. (ii) Legislative auditors;

   1. (iii) Legislative editors; and

      1. (iv) Legislative analysts.
   2. (B) Nothing in this provision limits the application of other exemptions to legislative employees.
   3. (C) “Legislative employee” has the same meaning as defined by Arkansas Code § 10-2-129.

(b) The act does not apply to students performing services for any school, college, or university in which they are enrolled and are regularly attending classes, Arkansas Code § 11-4-203(3)(B).

1. (c) The act does not apply to any individual employed by the United States Government, Arkansas Code § 11-4-203(3)(C).

   1. (d)
2. (1) The act does not apply to any individual engaged in the activities of any educational, charitable, religious, or nonprofit organization where the employer-employee relationship does not in fact exist or where the services are rendered to the organizations gratuitously, Arkansas Code § 11-4-203(3)(D).
3. (2) This exemption does not apply to an individual performing services for an employer engaged in a for-profit enterprise in return, exchange, or in anticipation of a donation or compensation to the educational, charitable, religious, or nonprofit organization.

(e)

1. (1) The act does not apply to any bona fide independent contractor, Arkansas Code § 11-4-203(3)(E).

2. (2) The test for determining the status of an individual as an employee or an independent contractor involves consideration of twenty (20) factors, specifically:

   1. (A) A person for whom a service is performed has the right to require compliance with instructions, including without limitation when, where, and how a worker is to work;

   2. (B) A worker is required to receive training, including without limitation through:

      1. (i) Working with an experienced employee;
      2. (ii) Corresponding with the person for whom a service is performed;
      3. (iii) Attending meetings; or
      4. (iv) Other training methods;
   3. (C) A worker’s services are integrated into the business operation of the person for whom a service is performed and are provided in a way that shows the worker’s services are subject to the direction and control of the person for whom a service is performed;
   4. (D) A worker’s services are required to be performed personally, indicating an interest in the methods used and the results;
   5. (E) A person for whom a service is performed hires, supervises, or pays assistants;
   6. (F) A continuing relationship exists between a worker performing services and a person for whom a service is performed;
   7. (G) A worker performing a service has hours set by the person for whom a service is performed;
   8. (H) A worker is required to devote substantially full time to the business of the person for whom a service is performed, indicating the person for whom a service is performed has control over the amount of time the worker spends working and by implication restricts the worker from obtaining other gainful work;

   9. (I)

      1. (i) The work is performed on the premises of the person for whom a service is performed, or the person for whom a service is performed has control over where the work takes place.
      2. (ii) A person for whom a service is performed has control over where the work takes place if the person has the right to:

(b) (b) Compel the worker to canvass a territory within a certain time; or

1. (c) (c) Require that the work be done at a specific place, especially if the work could be performed elsewhere;

   1. (J) A worker is required to perform service in the order or sequence set by the person for whom a service is performed, or the person for whom a service is performed retains the right to set the order or sequence;
   2. (K) A worker is required to submit regular oral or written reports to the person for whom a service is performed;
   3. (L) A worker is paid by the hour, week, or month except when he or she is paid by the hour, week, or month only as a convenient way of paying a lump sum agreed upon as the cost of a job;
   4. (M) A person for whom a service is performed pays the worker’s business or traveling expenses;
   5. (N) A person for whom a service is performed provides significant tools and materials to the worker performing services;
   6. (O) A worker invests in the facilities used in performing the services;
   7. (P) A worker realizes a profit or suffers a loss as a result of the services performed that is in addition to the profit or loss ordinarily realized by an employee;
   8. (Q) A worker performs more than de minimis services for more than one (1) person or firm at the same time, unless the persons or firms are part of the same service arrangement;
   9. (R) A worker makes his or her services available to the general public on a regular and consistent basis;
   10. (S) A person for whom a service is performed retains the right to discharge the worker; and
   11. (T) A worker has the right to terminate the relationship with the person for whom a service is performed at any time he or she wishes without incurring liability.

(h) The act does not apply to an individual who:

1. (1) Is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment;
2. (2) Commutes daily from his or her permanent residence to the farm on which he or she is so employed; and

3. (3) Has been employed in agriculture fewer than thirteen (13) weeks during the preceding calendar year, Arkansas Code § 11-4-203(3)(H).

   1. (i) The act does not apply to a migrant worker who is:
4. (1) Sixteen (16) years of age or under and is employed as a hand-harvest laborer;
5. (2) Paid on a piece-rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment;
6. (3) Employed on the same farm as his or her parent or parents; and
7. (4) Paid the same piece-rate as employees over age sixteen (16) years are paid on the same farm, Arkansas Code § 11-4-203(3)(I).

(k) The act does not apply to any employee employed in planting or tending trees, cruising, surveying or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plants, or railroad or other transportation terminal if the number of employees employed by his or her employer in the forestry or lumbering operations does not exceed eight (8), Arkansas Code § 11-4-203(3)(K).

1. (l) The act does not apply to any employee employed by a nonprofit recreational or educational camp that does not operate for more than seven (7) months in any calendar year, Arkansas Code§ 11-4-203(3)(L).

   1. (m) The act does not apply to an employee of a nonprofit child welfare agency who serves as a houseparent who is:

2. (1) Directly involved in caring for children who reside in residential facilities of the nonprofit child welfare agency and who are:

   1. (A) Orphans;
   2. (B) In foster care;
   3. (C) Abused;
   4. (D) Neglected;
   5. (E) Abandoned;
   6. (F) Homeless;
   7. (G) In need of supervision; or
   8. (H) Otherwise in crisis situations that lead to out-of-home placements; and

3. (2) Compensated at an annual rate of not less than:

   1. (A) Thirteen thousand dollars ($13,000); or
   2. (B) Ten thousand dollars ($10,000) if the employee resides in the residential facility and receives board and lodging at no cost, Arkansas Code § 11-4-203(3)(M).

(n)

1. (1) The act shall not apply to any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand (4,000), the major part of which circulation is within the county where published or counties contiguous thereto, Arkansas Code § 11-4-203(3)(N).
2. (2) See also 29 U.S.C. § 213(a)(8).

(o)

1. (1) The act shall not apply to any employee employed:

   1. (A) On a casual basis in domestic service employment to provide babysitting services; or

   2. (B)

      1. (i) In domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves, Arkansas Code § 11-4-203(3)(O).
      2. (ii) See also 29 U.S.C. 213(a)(15).
2. (2) For the purposes of defining these terms and in order to implement, administer, and enforce this exemption, the director adopts by reference and incorporates herein 29 C.F.R. pt. 552.

(p)

1. (1) The act shall not apply to any employee engaged in the delivery of newspapers to the consumer, Arkansas Code § 11-4-203(3)(P).
2. (2) See also 29 U.S.C. 213(d).

(q)

1. (1) The act shall not apply to any home worker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths), Arkansas Code § 11-4-203(3)(Q).
2. (2) See also 29 U.S.C. 213(d).

(r) An individual employed by an establishment that is an organized camp or a religious or nonprofit educational conference center if:

1. (1) The organized camp or a religious or nonprofit education conference center does not operate for more than seven (7) months in a calendar year; or
2. (2) During the preceding calendar year, the average receipts of the organized camp or a religious or nonprofit educational conference center for any six (6) months of the preceding calendar year were not more than thirty-three and one-third percent (33 1/3%) of the average receipts of the organized camp or a religious or nonprofit educational conference center for the other six (6) months of the preceding calendar year, Arkansas Code § 11-4-203(3)(R).