To be or not to be exempt? A review of the Professional Exemption
August 12, 2016
Author: Beth Kelly, Managing HR Business Partner, HR Collaborative, LLC
When it comes to FLSA regs, who are the Professionals?
The FLSA changes are going into effect in a few short months. By now, you know that the biggest change in these regulations is the increase of the minimum compensation threshold to $47,464 annually, or $913 weekly. Additionally, the Department of Labor provides guidelines on the various job duties that allow an employee to be exempt from the overtime rules. These exemptions are organized into six categories.
This week’s article will focus on the Professional Exemption. There are two categories for this exemption: learned professional and creative professional. Let’s look at the qualifications for each one.
A learned professional is someone who primarily performs work requiring advanced knowledge that is intellectual in nature and dependent on consistent exercise of discretion and judgment. This advanced knowledge must be in a field of science or learning, typically acquired by a prolonged course of specialized instruction (i.e., obtained by going to school for a long time!), but an advanced degree alone is not enough to qualify for this exemption.
- Who will likely qualify: Lawyers, accountants, doctors, ministers, scientists, pharmacists and other occupations that have a recognized professional status in the field of science or learning.
- Who won’t qualify: Electricians, plumbers or others who have professional training in the mechanical arts or skilled trades.
It is possible in some cases for an employee to be considered exempt if they gained skill through a combination of work experience and intellectual instruction, but that employee must have the same knowledge as and performing the same work as those with an advanced degree. If most employees in the profession gain their skills by experience rather than by specialized instruction (such as a technician or a paralegal) then they cannot be considered exempt from the regulation.
Usually the first question asked when considering exempt or non-exempt status is “does the position’s pay meet the minimum threshold (soon to be $47,476/year)”. As always, there are those exceptions. Teachers, people who practice medicine, or those who practice law are considered learned professionals, and do not have to meet the minimum salary threshold to be considered exempt.
A creative professional’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
- Who will likely qualify: Actors, musicians, composers, soloists, certain painters, writers, cartoonists, essayists, and novelists.
- Who won’t qualify: Copywriters, reporters, and CAD operators. While these positions require creative talents, their primary tasks don’t require imagination, invention or originality.
For more information about the Professional Exemption access the DOL website https://www.dol.gov/whd/overtime/fs17d_professional.pdf.
HR Collaborative is a business consulting firm specializing in strategic human resource management. We operate in partnership with our clients and as an extension of their HR department. We help organizations build their HR systems, offering assistance within the broad spectrum of Human Capital Management. Contact: 616.965.7860 or www.hrcollaborative.net