Background:
The FLSA requires most U.S. employees to be paid at least the federal minimum wage for all hours worked and overtime pay at no less than time and one-half regular pay for all hours worked above forty hours. Section 13(a)(1) of the FLSA provides an exemption to both the minimum wage and overtime requirement for four classifications of employees, including professionals. There are two general types of professionals exempt: (1) learned professionals and (2) creative professionals.
Learned Professionals:
To qualify for the learned professional employee exemption, the employee must be compensated on a salary or fee basis at a minimum of $684 per week. The employee’s primary duty must be the performance of work that is (1) predominately intellectual in character and (2) requiring advanced knowledge. This advanced knowledge (3) must concern a field of science or learning.
The Department of Labor provides guidance for how to determine the employee’s primary duty, what constitutes advanced knowledge, and what is considered a field of science or learning. An employee’s primary duty consists of the principal or majority of work performed and may be determined based on all facts relevant to the circumstances. To constitute “work requiring advanced knowledge,” the work must be predominately intellectual in character, meaning it requires consistent exercise of discretion by the employee. While the Department of Labor merely gives a broad outline for what is considered advanced knowledge, it specifies that advanced knowledge cannot be attained at the high school level and requires higher education. Fields of science or learning include law, medicine, theology, accounting, engineering, teaching, and hard sciences. The exemption only applies to professions with specialized academic training required for entrance into the profession.
Creative Professionals:
To qualify for the creative professional exemption, employees must (1) be compensated on a salary or fee basis of a minimum of $684 per week and (2) the employee’s primary duty requires intention, imagination, originality, or talent in a field of artistic or creative endeavor.
The creative professional’s exemption generally applies to actors, musicians, composers, novelists, and other similar professions. The creative professional’s category is generally believed to be more straight forward than the learned professional’s exception, but journalism may cause confusion. Journalists may satisfy the duties requirements if their primary duty is work requiring originality, imagination, invention, or talent. Journals do not qualify if they merely collect, organize, and rely on information that is already public or do not contribute a unique analysis/interpretation to the information.
Unlike the learned professional’s exemption, the creative professional exemption does not require the employee to hold any higher educational degree or knowledge.
