Many employers are familiar with the overtime requirements under the FLSA, but the exemptions written into the law often leave people scratching their heads.
In part two of this three part series, we’ll look at the Professional Exemption. Employees who qualify are exempt from the minimum wage and overtime provisions of the FLSA.
To qualify for the exemption, a professional employee must generally pass three tests:
- They must perform certain specific duties
- They must be paid on a salary basis, meaning they’ll make the same amount every week regardless of how many hours they work, or the quantity or quality of their work
- They must be paid the minimum salary for exempt employees as designated by the Department of Labor
Professional employees must also fall into one of these two categories:Learned professionals
Prolonged course of specialized intellectual instruction
They will generally need to be doing a job that requires and uses a specific degree, usually an advanced degree. For instanc: a food safety auditor who needs a degree in food science, or a job in a research lab that requires a degree in biology, or a job as a doctor, that requires a medical degree.Creative Professionals
Invention, imagination, originality or talent
Those who are employed to be creative. Exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Jobs likely to fit into this category would be sculptors, actors, fiction writers, and cartoonists. Although it seems like a graphic designer would also fit in here, that’s less easy. For instance, one court ruled that a graphic designer who was employed to make PowerPoint presentations for personal injury trials did NOT have enough latitude to be truly creative to qualify for the exemption.
Keep in mind that there are a few types of professionals who don’t have to pass the salary level and salary basis tests. These include bona fide, practicing doctors, lawyers, and teachers.
“Bona fide” and “Practicing” are the important words here. For instance, a law degree doesn’t necessarily qualify an employee for an exemption - the employee would have to be actively practicing law. Teachers need to be imparting knowledge in an educational establishment, so teaching pre-school is unlikely to count.
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