Unlike its two conformist siblings—the licensed professional and learned professional exemptions—the “creative professional” exemption is an artsy rebel that does not depend on an employee’s professional field, advanced knowledge, or educational degree. Determining whether an employee meets the creative professional exemption involves a fact-specific inquiry regarding the exact nature of the work performed by the employee.
Who is an exempt creative professional?
Federal law: To qualify as an exempt creative professional under federal law, the employee must be compensated at least $455 per week and the employee’s “primary duty” must be the performance of work that requires invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
California law: The California standard differs from the federal standard, and requires that the employee (1) receive a salary of no less than two times the state minimum wage for full-time employment (currently equivalent to $37,440 per year), (2) spend more than 50% of the time performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor, and (3) regularly exercise discretion and independent judgment in the performance of the job duties.
Just how creative must the work be?
Whether an employee is exempt as a creative professional turns on the extent of the invention, imagination, originality, or talent that the employee exercises. For example:
Journalists. Generally, whether journalists are exempt as creative professionals depends on if they contribute a unique interpretation or analysis to a news product, as opposed to merely collecting, organizing, or recording information that is routine or already public. Journalists who likely fall within the creative professional exemption include “personalities” who perform “on air” or write articles that are primarily analytical in nature, where management does not exercise substantial control over their work product. Journalists who may fall outside the exemption include those who primarily write about routine events, are told which stories to cover, and are told the focus or angle of the story before they cover it. Thus, the author of a Rolling Stone cover story may well be exempt, while a crime-beat writer may not be.
Graphic Consultants. The key here is how much originality or creativity is generated by the employee who performs the work. Litigation graphics consultants who simply document information about a case in an informative, easily understandable way for a jury are likely not exempt. But litigation graphic consultants who generate original and creative ways to tell a story about a case, or graphics consultants who develop creative ways to advertise a product, likely would be exempt.
Television and Motion Picture Writers. Writers employed in the television and motion picture industries may not be exempt due to time limits, restrictive outlines, or other constraints imposed on the creative aspects of their work. But writers who craft and write original stories for film or television would be exempt.
Musicians. Composers and soloists are often exempt because they have wide-ranging artistic discretion, including control over the music they create and perform. So while a solo cellist would likely be exempt, a violinist in your local symphony might not be.
So what is the key take away?
Employers must keep in mind that not all “creative” or “artistic” employees will satisfy the test for the creative professional exemptions. It is not enough that the employee knows how to play music, paint, draw things, or write articles or scripts. The critical test is whether the creative work that the employee performs requires the necessary quantum of imagination or originality, and whether the employee exercises sufficient independence and control over the final work product.