Salary Issues: The Professional Exemption under the FLSA

Although minimum wage and overtime pay regulations apply to most employees in the United States, there remain certain employees that are exempt from both. Section 13(a)(1) of the Fair Labor Standards Act (FLSA) notes exemptions for professional, executive, administrative, and outside sales employees. Certain computer employees are also exempt under this section, as well as under Section 13(a)(17).

Being employed in any of these lines of work does not automatically qualify the employee for exemption; they must also meet a short list of requirements. For this purpose, exempt employees have been divided into two categories: learned professionals and creative professionals.

Learned professionals denotes employees whose primary duty requires an advanced knowledge in the field of science or learning, and whose knowledge was acquired through a great deal of instruction over a prolonged period of time. This differs from work involving routine manual labor, and generally applies to professionals that use their knowledge to analyze, interpret and deduce. Engineering, architecture, law, teaching, and medicine are all examples of learned professionals. In order to qualify for exemption, learned professionals must be paid greater than or equal to $455 per week.

Creative professionals denotes employees whose primary duty involves invention, talent, imagination, and/or originality in a recognized field of art or venture. Musicians, writers, and actors are all examples of creative professionals. However, whether or not the exemption applies to the professional is determined on a case by case basis and dependent on the extent of their contribution to society. For example, a journalist who simply collects and reorganizes previously public information would not be considered exempt. As with learned professionals, creative professionals must also be paid greater than or equal to $455 per week.

In addition to learned and creative professionals, highly compensated employees are also exempt from minimum wage and overtime regulations. This exemption applies only to office or non-manual employees who make greater than or equal to $100,000 per year, with pay of at least $455 per week throughout that time period. They must also regularly perform at least one of the duties that would be performed by an exempt professional, executive, or administrative employee.

For further information on professional exemption, please visit the FLSA website, or contact us here.

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