Do you employ nurses? Graphics consultants or designers? Did you know that (in addition to other types of employees we have talked about here here and here) these employees may be entitled to overtime, too? What?! Aren’t learned and creative professionals exempt from overtime? The Fair Labor Standards Act says so! What’s the problem, then? As the employer, you must be able to show that the job functions in question meet the actual requirements of these exemptions. Join The Emplawyerologist after the jump to learn more…
Professionals usually get a decent, fixed salary. How can they also be entitled to overtime? The answer depends in part on how you define “professional”. The FLSA recognizes two types of professionals for overtime exemption purposes, the Learned Professional and the Creative Professional.
Here are the criteria for the Learned Professional exemption:
- The employee must be compensated on a salary or fee basis (click here for a review) at a rate not less than $455 per week;
- The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning; and
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
What jobs satisfy these requirements? There are the obvious, such as the doctor or lawyer or accountant. How about someone who does engineering work but does not have the actual degree or any advanced education or training? Young v Cooper Cameron Corp 586 F.3d 201 (2d Cir. 2009), relying on DOL regulations, (specifically 29 CFR Sec. 541.308(a) said “No”. Why? The exempt learned professional must have advanced knowledge, “customarily acquired by a prolonged course of specialized intellectual instruction”. Mr. Young, while he had 20 years of “engineering type experience” was a high school graduate. While he performed “draftsmen, designer and detailer” functions, his job only required a minimum of 12 years’ relevant experience, and no advanced degree. The DOL regulation specifically says that it is “not the case that just anyone in the field of engineering will qualify for the exemption”. The court said that the employee must be more than just a highly skilled technician. The court cited Mr. Young’s lack of advanced education and training and the fact that his job did not require it, to conclude that Mr. Young, at most, was a highly skilled technician and not a learned professional.
How about a paralegal? According to the DOL, paralegals generally do not qualify as exempt learned professionals. The exemption may however be available for paralegals with advanced specialized degrees in other professional fields, who apply that knowledge in the performance of their duties. For example, if a law firm hires an engineer as a paralegal to provide expert advice on product liability cases to assist on patent matters, that engineer would qualify for exemption.
Are nurses exempt? The answer is a definite “maybe”! Registered Nurses registered by a state examining board and paid at least $455 a week on a salary basis are generally considered exempt. If however the same R.N. is paid hourly s/he becomes non-exempt. A Licensed Practical Nurse, which requires less education and advanced knowledge is not a an exempt learned professional. Hate to sound like broken record, but the title will not determine exempt status. The actual job functions and training/education required will.
Let’s move to one of my favorite exemption categories, the Creative Professional. To meet this exemption the job functions must meet these criteria:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
- The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Just how “creative” must the work be? Think of the fellow who came up with the formula for Cool Whip for Kraft Foods. If he was paid the FLSA weekly minimum on a salary basis, he was probably an exempt creative professional. Let’s look at a few other real-life examples.
Journalists may or may not be exempt creative professionals. Those whose reporting lacks “the sophistication of the national level papers”, whose daily workload prevents them from conducting detailed news analysis or investigative journalism (which are necessary for this exemption to apply) are not exempt creative professionals, according to Wang v Chinese Daily News, Inc. No. 08-55483 (9th Cir. Sept. 27, 2010). Similarly, reporters at small, community newspapers, who wrote articles about local events using public information and press releases are non-exempt, per the courts in Reich v. Newspapers of New England, Inc 44 F.3d 1060 (1st Cir. 1995), and Reich v. Gateway Press, Inc. 13 F.3d 685, 700 (3rd Cir. 1994). In contrast, a Washington Post reporter whose “job required him to originate his own story ideas, maintain a wide network of sources, write engaging, imaginative prose and produce stories containing thoughtful news analysis of complex issues” is an exempt creative professional. ( See Sherwood v. Washington Post 871 F. Supp.1471, 1482 (D.D.C. 1994).
Are graphics consultants or designers exempt creative professionals? A litigation graphics consultant whose job was “to convey information about a case in an informative, easily understandable way to triers of fact” was not exempt, according to Kadden v. VisuaLex, LLC, No. 11 Civ 4892, 2012 WL 4354781 (S.D.N.Y.Sept. 24, 2012), because there was no indication that the employee needed to originate stories from scratch or produce complex analyses of or transform any facts given. The key is how much originality and real creativity is generated by the actual person performing the job.
OK, just one more interesting example. How about strippers? What do you think? While the employer in 4 Exotic Dancers v Spearmint Rhino, et al, No. CV-08-4038 ABC (US. Dist Ct. C.D. CA 2008) argued for the exemption, the strippers felt that their work did not require “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor”. I suspect the strippers are right, but that’s just my humble opinion. Since the court dismissed this case on an unrelated technicality, however, it never actually ruled on this issue.
One more note: If any of the employees described above, were paid $100,000 or more a year (at least $455 a week of which was on a salary basis) and they performed at least one exempt function articulated under the administrative, executive or professional exemption categories they would fall within the Highly Compensated Employee exemption. Remember, an employee can job fail to meet one exemption category but still meet another!
OK, I did promise to wrap up this topic this week, but I still didn’t cover the exemptions for sales people, so stay tuned and we’ll do that next week — and then we’ll move on to a new topic — for real! Happy 2014 by the way!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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Janette, thank you for your information on this topic, it has been one of much thought for me as I am employed as a Landscape Designer. I was hoping to find some more information in this regard because I feel what I do is not similar to a Graphic Designer as my job duties are multi-fold: Designing landscapes is one duties that constitutes about 25% of my job, but I also have to provide customer service to past clients regarding plant warranties, I also do on site project management of construction projects and create estimates for projects. All of this requires more than 40 hours per week to do, and I am not able to sell many landscape projects during the winter in my state.
Do you have any information, or can you forward me to any information regarding the profession Landscape Designer.
Hi Tim,
From your description it does not sound as though your position meets the criteria for the Creative Professional exemption. First, the presumption is against exemption and in favor of overtime. Second, at best it is unclear whether landscape design falls within this exemption at all. Third, even if a Landscape Designer is a creative professional within the meaning of the exemption, it does not sound as though that is your primary duty, which it would have to be in order for your position to be exempt from overtime. That said, however, you might want to see if your position would fit the criteria for the Administrative Exemption. The main question is how much independent judgment and discretion do you get to exercise in performing your job, and what are your primary duties? Also, as of December 1 the salary threshold is higher. If you are paid a salary and you earn at least $913 a week or $47,436 a year, then you meet the salary test. If you are not paid that much, then even if your job duties meet the Administrative Exemption criteria, you will still not be exempt. You should also check to see if the State in which you are employed has further requirements for either of those exemptions. While it seems likely that you are not exempt, I recommend you speak with someone local to find out more and get an opinion based on all the facts. I hope this has helped a bit. Good luck!
So if I am employed as a graphic designer (primary job is to be creative) and make $45,000 a year, could you explain what this means for me and my employer?
Hi, Assuming that the primary job functions of your position meet the exemption criteria, then currently you would be exempt from overtime, but will not be as of December 1, unless your employer raises your salary up to $47,476. Without knowing more specifics about your actual primary job functions, however, I cannot say for sure if you are currently exempt. You may well be. I would encourage you to seek a consultation with local employment counsel to explore further.
Thanks for clarifying!
Happy to be of help!
I am a church music/choir director. I would like to know if I might be an exception to the new FLSA overtime rule under the creative professional category.
I suspect not. The presumption is against exemptions and in favor of overtime eligibility whenever there is any doubt. There is a level of creativity and inventiveness required (e.g. composition) that I suspect is not present here. I say suspect because I do not have the full job description. If you are concerned you may want to speak with someone local, so that you can also make sure there is no similar or other applicable exemption in your state.
Have there ever been any cases where current non-exempts successfully reclassified as exempt? My situation is as follows: Held exempt “Assistant Manufacturing Engineer” position from 1996 to 2005, then demoted to non-exempt (same title) after federal rules changes, due to not having an Engineering degree however, employees at a sister plant were “grandfathered” into exempt positions in 2005. I’ve been told over the years that there was no possibility of advancement without a BS however, recently we hired a “non-degreed” professional as an exempt (PLC controls) engineer. Job descriptions are identical for exempt and non-exempts. Exempt employees make considerably more money than the non-exempts so obviously it is in my best interest to seek exemption again. Current salary is >80k with solid performance each year, but our exempts make up to 130k + bonus. I’ve been underpaid for the last 12 years!
Hi Ben,
Generally for a non-exempt position to be classified as exempt, the primary job functions would have to change enough to warrant the reclassification. A company that has the same job description for exempt and non-exempt positions at a minimum, needs to review the descriptions and review its reasons for classifying some employees in that position as exempt and others as non-exempt. Without knowing more about your primary job functions I cannot say whether your position can properly be classified as exempt. If you have a job description you may want to take it to an employment attorney near you to review it. You of course should also include functions you are performing that are not included in the job description. Depending on the state where you are employed there may be additional criteria for the exemption categories that make it harder to classify the position as exempt under State laws. It could be that you are not otherwise being paid what you are worth, but it may not be an FLSA violation. You might also want to look at who else is performing the same job functions as you and what they are paid and see if there would be any justifications for them being paid more. If there truly are no justifications and you truly are similarly qualified, you may have a pay discrimination claim. Again though you really need to consult with employment counsel in the state where you work to look at your situation and evaluate if you have any legal recourse. Hope this helps. Good luck!
Is there any case law or precedent anywhere that you know of that touches on engineers qualifying for the creative professional exemption? I’m an R&D type, and my company just reclassified me as non-exempt for–I believe–the specific purpose of cutting my sick time (exempt employees get unlimited sick time, non-exempt get the state minimum). This is rather inconvenient for me, since I’m heading into surgery for cancer around the end of this month or the beginning of the next…
I don’t know about creative professional. Assuming your pay is at or above the minimum salary threshold, the answer depends at least in part on whether your primary functions include some type of invention, design or other similar creative activities. It is possible your position meets another exemption category. At the same time, please also keep in mind that if you work in a state that imposes additional requirements for the exemption categories then those will have to be met as well. I suggest you speak with an employment attorney in the state where you work and have a full consultation. Many attorneys will provide a complementary consultation.
Hi,
If you use a staffing agency and the staffing agency provides workers that work on your premises and you supervise direct and control their work and the work environment, you will likely be a co-employer. So yes, if you switch to another staffing company you will continue to be a co-employer. Hope that helps.
Sorry, I didn’t get notified of the replies on this.
Yes: design, invention, and creative processes were certainly involved. I’m an engineer, and was design lead on a project that had already received a patent (with my name on it) for some of the components.
Things worked out in the end. I was actually terminated shortly after, and in the discovery phase of the lawsuit that followed, my company handed over a stack of emails where the corporate management had explicitly tied my reclassification to my sick time. As soon as those emails saw the light of day, well…
“The matter has been resolved. I can make no further comment at this time.”
(Also: I seem to have survived the cancer. So far, at least.)
I am glad to hear that you seem to have survived the cancer and that it seems that the matter with your employer has been resolved. I truly hope that you are headed for better times from here forward.
A quick question about the creative classification: I am employed as a content specialist at a communications agency where I create content for social media platforms, digital channels, radio programming, video commercials and scripts. While my supervisor briefs me on the parameters on a given project, I am encouraged to create a wide berth of ideas and concepts, of which I do solo, with a teammate, or in a small group, depending upon the circumstances. Nearly all of my work is based on imagination and is what I consider creative skills. I also help to envision visuals that accompany the copy, which we do in brainstorms. Wouldn’t that qualify me for exemption?Thank you for your thoughts.
Hi Ramona, Based on your description you may fall within the creative professional exemption. Have you been classified as overtime-exempt? Also, depending on what state you work in, there may be additional requirements for you to fall within that category. If there are and your job doesn’t not meet those additional criteria, then even if you would be overtime-exempt under federal law, you might not be due to the additional requirements under state laws. For that reason, I do recommend that employees who have wage and hour questions consult with a local employment attorney.