There are a few different rules for exempt professionals who are not protected by the FLSA’s overtime and minimum wage provisions. They generally consist of the following four categories:
The general rule for the Professional Exemption is that it applies to an employee who is compensated on a salary or fee basis and whose primary duty is the performance of work:
- Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
- Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:
- The employee must perform work requiring advanced knowledge;
- 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 Does Work Requiring Advanced Knowledge Mean?
The phrase “work requiring advanced knowledge” means work which requires the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical, or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
For example, an accountant with a four-year degree who is paid on a salary or fee basis and uses his or her professional accounting judgment in making decisions for the employer is an exempt professional and not entitled to overtime or minimum wage protections.
However, an employee without an accounting degree who works in the accounting department calculating difficult accounts receivable and expense data using accounting software or following the employer’s specific procedures is not an exempt professional for overtime and minimum wage purposes.
The learned professional exemption does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.
What Is Included in the Phrase Field of Science or Learning?
The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.
For example, an employee who is required to have an engineering degree and performs work as an engineer, in addition to being paid on a salary or fee basis, is exempt from the FLSA overtime and minimum wage requirements.
However, a highly skilled repair employee at a complex electrical power generation facility that is not required to have a degree for the job who is paid on a salary or fee basis is not an exempt professional even though his or her work requires significant knowledge and intelligence.
What Does Prolonged Course of Specialized Instruction Mean?
The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best evidence that an employee meets this requirement is possession of the appropriate academic degree.
For example, a licensed attorney practicing law is an exempt employee, but a paralegal who has a certification from a paralegal school who is paid on a salary or fee basis is generally not an exempt professional under the FLSA. Even though that paralegal has a degree, it is generally not required for paralegals to have a degree to perform their jobs, so the professional exemption does not apply.
To qualify for the creative professional exemption, an 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 as opposed to routine mental, manual, mechanical or physical work. The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training.
The creative professional also requires that the work performed must be in a recognized field of artistic or creative endeavor. This includes such fields as music, writing, acting and the graphic arts.
An example of an employee who would generally be exempt from the FLSA’ overtime and minimum wage protections is a journalist paid on a salary or fee basis who is allowed and required to use his/her originality or talent in deciding how to cover a specific news story.
However, if that same journalist is told what to say and does not have the discretion to use his/her independent talent in covering a new story, that employee, even if paid on a salary or fee basis, is generally not exempt and is entitled to overtime and minimum wage protections under the FLSA.
However, as stated in that regulation, the creative professional exemption must be determined on a “case-by-case basis,” so please contact Baron & Budd for an initial consultation at no cost to you to learn more about where you fit regarding this exemption.
Special Rules for Teachers, Doctors and Lawyers
While most of the FLSA exemptions require employees to be paid on a salary or fee basis in order to move to the next step of evaluating primary job duties to determine the FLSA exemption status, teachers, doctors, and lawyers do not have to be paid on a salary or fee basis in order to be exempt professionals under the FLSA.
Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school pupils; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. Those faculty members who are engaged as teachers but also spend a considerable amount of their time in extracurricular activities such as coaching athletic teams or acting as moderators or advisors in such areas as drama, speech, debate or journalism are engaged in teaching. Such activities are a recognized part of the schools’ responsibility in contributing to the educational development of the student.
The possession of an elementary or secondary teacher’s certificate provides a clear means of identifying the individuals who are exempt teaching professionals under the FLSA. Teachers who possess a teaching certificate qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the state to refer to different kinds of certificates.
However, private schools and public schools are not uniform in requiring a certificate for employment as an elementary or secondary school teacher, and a teacher’s certificate is not generally necessary for employment in institutions of higher education or other educational establishments. Therefore, a private school teacher who is not certified may an exempt teaching professional who is not entitled to overtime or minimum wage payments.
Lawyers and Doctors
The professional exemption for doctors and lawyers includes any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof. For example, a licensed attorney practicing law is exempt from the FLSA overtime provisions. However, if that licensed attorney is employed as a paralegal only, then that attorney will generally be due overtime and minimum wage protections under the FLSA.
In the case of medicine, the exemption applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term “physicians” includes medical doctors including general practitioners and specialists, osteopathic physicians (doctors of osteopathy), podiatrists, dentists (doctors of dental medicine), and optometrists (doctors of optometry or bachelors of science in optometry).
While this obviously applies to medical doctors, it does not apply to other medical professionals such as physicians assistants. While a physician assistant may still be exempt under the general professional exemptions discussed above, he or she must be paid on a salary or fee basis in order to be exempt whereas a medical doctor does not have to be paid on a salary or fee basis. An example of a physician assistant who is entitled to overtime and minimum wage protections under the FLSA is one who is paid on an hourly or day rate basis.
Finally, employees engaged in internship or resident programs, whether or not licensed to practice prior to the commencement of the program, qualify as exempt professionals if they enter such internship or resident programs after the earning of the appropriate degree required for the general practice of their profession.