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Fact Sheet: Exemption for
Professional Employees Under the Fair Labor Standards Act (FLSA)
This fact sheet provides general information on
the exemption from minimum wage and overtime pay provided by Section
13(a)(1) of the Fair Labor Standards Act as defined by Regulations, 29
CFR Part 541.
The FLSA requires that most employees in the
United States be paid at least the federal minimum wage for all hours
worked and overtime pay at time and one-half the regular rate of pay for
all hours worked over 40 hours in a workweek.
However, Section 13(a)(1) of the FLSA provides an
exemption from both minimum wage and overtime pay for employees employed
as bona fide executive, administrative, professional and outside sales
employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain
computer employees. To qualify for exemption, employees generally must
meet certain tests regarding their job duties and be paid on a salary
basis at not less than $455 per week. Job titles do not determine
exempt status. In order for an exemption to apply, an employee’s
specific job duties and salary must meet all the requirements of the
Department’s regulations.
The specific requirements for exemption as a bona
fide professional employee are summarized below. There are two general
types of exempt professional employees: learned professionals and
creative professionals.
See other fact sheets in this series for more
information on the exemptions for executive, administrative, computer,
and outside sales employees, and for more information on the salary
basis requirement.
Learned Professional Exemption
To qualify for the learned professional
employee exemption, all of the following tests must be met:
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The employee must be compensated on a salary
or fee basis (as defined in the regulations) at a rate not less than
$455 per week;
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The employee’s primary duty must be the
performance of work requiring advanced knowledge, defined as work
which is predominantly intellectual in character and which includes
work requiring the consistent exercise of discretion and judgment;
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The advanced knowledge must be in a field of
science or learning; and
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The advanced knowledge must be customarily
acquired by a prolonged course of specialized intellectual
instruction.
Primary Duty
“Primary duty” means the principal, main, major or
most important duty that the employee performs. Determination of an
employee’s primary duty must be based on all the facts in a particular
case, with the major emphasis on the character of the employee’s job as
a whole.
Work Requiring Advanced Knowledge
“Work requiring advanced knowledge” means work
which is predominantly intellectual in character, and which includes
work requiring the consistent exercise of discretion and judgment.
Professional work is therefore distinguished from work involving routine
mental, manual, mechanical or physical work. A professional employee
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.
Field of Science or Learning
Fields of science or learning include law,
medicine, theology, accounting, actuarial computation, engineering,
architecture, teaching, various types of physical, chemical and
biological sciences, pharmacy and other occupations that have a
recognized professional status and are distinguishable from the
mechanical arts or skilled trades where the knowledge could be of a
fairly advanced type, but is not in a field of science or learning.
Customarily Acquired by a Prolonged Course of
Specialized Intellectual Instruction
The learned professional exemption is restricted
to professions where specialized academic training is a standard
prerequisite for entrance into the profession. The best evidence of
meeting this requirement is having the appropriate academic degree.
However, the word “customarily” means the exemption may be available to
employees in such professions who have substantially the same knowledge
level and perform substantially the same work as the degreed employees,
but who attained the advanced knowledge through a combination of work
experience and intellectual instruction. This exemption does not apply
to occupations in which most employees acquire their skill by experience
rather than by advanced specialized intellectual instruction.
Creative Professional Exemption
To qualify for the creative professional
employee exemption, all of the following tests must be met:
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The employee must be compensated on a salary
or fee basis (as defined in the regulations) at a rate not less than
$455 per week;
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The 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.
Invention, Imagination, Originality or
Talent
This requirement distinguishes the creative
professions from work that primarily depends on intelligence, diligence
and accuracy. Exemption as a creative professional depends on the
extent of the invention, imagination, originality or talent exercised by
the employee. Whether the exemption applies, therefore, must be
determined on a case-by-case basis. The requirements are generally met
by actors, musicians, composers, soloists, certain painters, writers,
cartoonists, essayists, novelists, and others as set forth in the
regulations. Journalists may satisfy the duties requirements for the
creative professional exemption if their primary duty is work requiring
invention, imagination, originality or talent. Journalists are not
exempt creative professionals if they only collect, organize and record
information that is routine or already public, or if they do not
contribute a unique interpretation or analysis to a news product.
Recognized Field of Artistic or Creative
Endeavor
This includes such fields as, for example, music,
writing, acting and the graphic arts.
Teachers
Teachers are exempt if their primary duty is
teaching, tutoring, instructing or lecturing in the activity of
imparting knowledge, and if they are employed and engaged in this
activity as a teacher in an educational establishment. Exempt teachers
include, but are not limited to, regular academic teachers; kindergarten
or nursery school teachers; 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 instrument music teachers. The
salary and salary basis requirements do not apply to bona fide teachers.
Having a primary duty of teaching, tutoring, instructing or lecturing in
the activity of imparting knowledge includes, by its very nature,
exercising discretion and judgment.
Practice of Law or Medicine
An employee holding a valid license or certificate
permitting the practice of law or medicine is exempt if the employee is
actually engaged in such a practice. An employee who holds the
requisite academic degree for the general practice of medicine is also
exempt if he or she is engaged in an internship or resident program for
the profession. The salary and salary basis requirements do not apply
to bona fide practitioners of law or medicine.
Highly Compensated Employees
Highly compensated employees performing
office or non-manual work and paid total annual compensation of $100,000
or more (which must include at least $455 per week paid on a salary or
fee basis) are exempt from the FLSA if they customarily and regularly
perform at least one of the duties of an exempt executive,
administrative or professional employee identified in the standard tests
for exemption.
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