Do Not Assume that the Creative Professional Exemption Covers Your Executive Chef
In recent years, the number of wage and hour lawsuits filed in federal court has steadily increased and the trend is likely to continue in the wake of the DOL’s proposed amendments to the regulations establishing white collar exemptions to the FLSA’s minimum wage and overtime requirements. So the time is ripe for employers to assess whether their workers are appropriately classified as exempt or non-exempt under the FLSA.
One position of particular concern for employers operating senior living or long-term care communities is the Executive Chef. With the popularity of television cooking shows and celebrity chefs who transform exotic ingredients into mouth-watering dishes that look like priceless works of art, it is often assumed that Executive Chefs necessarily fall well within the parameters of the creative professional exemption. That assumption, however, could land employers in hot water.
To avoid getting burned by a misclassification lawsuit, employers are well-advised to take steps now to determine whether their Executive Chefs may be properly classified as exempt from the FLSA’s minimum wage and overtime requirements. In doing so, the employer must look beyond the job title (which certainly sounds exempt, right?) and to the duties actually being performed by the Executive Chef on a day-to-day basis.
To qualify for the creative, learned professional exemption, the Executive Chef must (1) possess a four-year specialized academic degree in a culinary arts program; (2) regularly design unique dishes and menu items (using invention, imagination, originality or talent); and (3) be paid on a salary basis of at least $455 per week (for now — if the DOL’s proposed amendment becomes final, that number will more double to $970 per week, which is $50,440 annualized). Cooks who primarily perform routine mental, manual, or physical work (e.g., routine cooking and food preparation) do not qualify for this exemption. Within senior living or long-term care facilities this exemption may not apply if, for example, menu planning and procurement decisions are made at a regional or corporate level such that the on-site Executive Chef is merely executing on a plan without using any creativity or imagination.
Consider Applicability of the Executive and Administrative Exemptions for Your Executive Chefs
All is not lost, however, if the Executive Chef does not come within the ambit of the creative professional exemption. Even if the Executive Chef is not inventing new dishes or creating menus, the executive and administrative exemptions may nevertheless apply. To qualify for the executive exemption, the Executive Chef must (1) manage kitchen operations; (2) customarily and regularly direct the work of two or more employees in the kitchen; (3) have the authority to hire and fire employees or to effectively recommend the hiring and firing and the advancement and promotion of other employees; (4) customarily and regularly exercise discretion and independent judgment as to matters of significance; and (5) meet the salary basis test. Similarly, an Executive Chef can be properly classified as an exempt administrative employee if she (1) satisfies the salary basis test; (2) performs office or non-manual work regarding general business operations; and (3) customarily and regularly exercises discretion and independent judgment as to matters of significance.
Often the main concerns about the exempt status of Executive Chefs at senior living and long-term care facilities are: (1) the amount of time Executive Chefs spend preparing food; (2) the authority given to Executive Chefs to make important decisions regarding menu planning, food ordering, and other kitchen decisions; and (3) supervisory authority maintained over kitchen employees and servers by other members of facility management. For example, is an Executive Chef spending too much time on routine food preparation duties, and not enough time on managing staff and making other important decisions to meet the requirements of the executive or administrative duties? If the Executive Chef is regularly required to be a hands-on cook, it may make it more difficult to demonstrate that his/her primary duty is exempt work. However, if the Executive Chef is simultaneously supervising and monitoring the kitchen staff at the same time he/she is preparing or cooking food, the position may well be exempt. Indeed, the performance of concurrent duties has been a determinative factor in overtime cases involving chefs that were decided in favor of employers. Stay tuned for the DOL’s final rule which could eliminate these exemptions for workers performing concurrent duties.
In many organizations, even though the Executive Chefs serve as a “manager” throughout the day as required for the executive exemption, the inquiry must also look at whether the Executive Chefs exercise enough independent judgment and discretion on matters of significance. For example, does the Executive Chef develop the menus, decide where to obtain food or other supplies, prepare cost estimates for food and supplies, or make other important decisions regarding kitchen or dining operations. With regard to the administrative exemption, clearly many of an Executive Chef’s typical duties are directly related to the general business operations of their communities. Indeed, they are generally responsible for overseeing the preparation of meals within their communities, oversight of health and safety matters, and training kitchen staff. As with the executive exemption, the biggest obstacle to the application of the administrative exemption is determining whether the Executive Chef customarily and regularly exercises and independent judgment on matters of significance. That determination requires a fact-intensive inquiry.
Update Job Descriptions to Reflect Exempt Work
When reviewing the work of Executive Chefs to determine the appropriate classification, employers should also review and, if needed, update the job description and training materials for Chefs to ensure that the position is consistently described in an exempt fashion and reflects the employer’s expectations that the employee perform exempt duties. The description, for example, should require that the Executive Chef take a management role with regard to the hiring, supervision, training, and discipline of all workers within his department, and should make clear that the primary function and purpose of the job is departmental oversight. Of course, the written description is not itself determinative of an employee’s exempt status. Even so, it is important that the job description accurately reflect the employer’s expectations for the duties to be performed by its exempt workers.
Monitor the Status of the DOL’s Proposed Amendments
If the DOL’s proposed regulation becomes a final rule, employers will need to ensure that all employees who meet the duties test are being paid the new minimum salary level. In addition, although no changes were proposed to the duties test, we nevertheless expect to see revisions to the duties test. As a result, it is important to understand both how your organization’s Executive Chefs are paid and what duties they are performing so that you can ensure proper classification and/or make appropriate modifications to maintain their exempt status.