Last month, we debuted our series on wage and hour basics with a review of the white collar exemptions.As the Department of Labor gets ready to issue revised FLSA regulations, we will continue take a look at some of the more fundamental concepts of the FLSA. As always, remember that these are just the basics: the application of these rules to specific facts is where the rubber really meets the road for employers.

To briefly recap, the FLSA requires that employers pay employees overtime—at least straight time plus one-half of their “regular rate” of pay for every hour they workweek in excess of 40 hours in a particular workweek. 29 U.S.C. § 207(a). The FLSA and its interpretative regulations published by the DOL, however, exempt certain groups of employees from the overtime pay requirements. One such exemption, and by far the most commonly used, relates to employees working in jobs that the FLSA describes as executive, administrative, or professional—the so-called “white-collar” exemptions. 29 U.S.C. § 213(a)(1). It is these exemptions that we predict will be the focus of the DOL’s upcoming revisions to the FLSA regulations.

In order for employees to fall within one of the white-collar exemptions, they must perform executive, administrative, or professional duties (the “duties” test) and make a certain weekly salary (the “salary basis” test)—often described as the “salary-duties” test. A combination of exempt duties may also satisfy the duties test. The employer has the burden of proving both elements of the test—non-exempt status is considered the default—and courts narrowly construe the white-collar exemptions. In our last post, we discussed the first two of these white-collar exemptions—executive and administrative. Now, let’s look at the “professional” exemption.

Exempt Duties: Professional

The professional duties exemption actually contains two distinct subcomponents: learned professionals and creative professionals. To qualify under the learned professional exemption, an employee must meet all of the following criteria:

  1. The employee must perform requiring advanced knowledge;
  2. The advanced knowledge must be in a field of science or learning; and
  3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 29 C.F.R. § 541.301.

Occupations requiring only a bachelor’s degree in any field, an associate’s degree, or completion of a short course of specialized training as a standard prerequisite for entrance into a particular field, do not qualify for the learned professional exemption. See 69 Fed. Reg. 22,12222,150 (Apr. 23, 2004). The DOL’s Wage and Hour Division has outlined this exemption in several official Opinion Letters in the past as well. Common jobs held by learned professional employees include lawyers and CPAs.

To qualify as a creative professional, the employee’s primary duty must consist of the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. 29 C.F.R. § 541.302. An on-air television or radio journalist serves as an example of an overtime-exempt creative professional.

As the regulations suggest, a job title alone will not ensure that the employee qualifies for the exemption—this will still be determined by the particular facts. In our next installment in this periodic series, we’ll look at the penalties for noncompliance with the FLSA.