The Professional Exemption has Strict Rules Learn why you may be misclassified under the labor laws

Why the Professional Exemption May Not Apply to You

If your employer classifies you as an exempt employee, this affects your status to receive overtime pay under the federal labor laws. Some employers misclassify employees under the professional exemption, but this exemption has to meet certain rules. Simply because your employer says so does not mean the professional exemption applies to you: Do not assume your employer has studied the FLSA. This article will explain why you may not fall under the professional exemption.

There are only two types of professional employee exemptions: learned professionals and creative professionals.  The two professional exemptions as defined in the labor laws are explained below.

Learned Professional
To qualify for the learned professional exemption, all of the following must be met:

  • The employee must be compensated on a salary/fee basis at a rate not less than $455 per week;
  • The employee's primary duty must be work requiring advanced knowledge,, predominantly intellectual in character and which includes work requiring consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a science or learning field; and
  • The advanced knowledge must usually be acquired by a course of specialized intellectual instruction.

Work requiring advanced knowledge means work that is mostly intellectual, and which includes consistent exercise of discretion and judgment. Professional work is distinguished from work involving routine mental, manual, mechanical or physical work.

Fields of science or learning include law, medicine, theology, accounting, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other occupations that have a recognized professional status.

The learned professional exemption is further restricted to professions where academic training is normally a prerequisite for entering the profession. The best evidence of meeting this requirement is having the corresponding academic degree. A four-year degree is generally required to fall under this category, but rare exceptions are made for individuals with acquired work experience.

Creative Professional
To qualify for the creative professional exemption, all of the following must be met:

  • The employee must be compensated on a salary/fee basis at a rate not less than $455 per week;
  • The employee's primary duty must be work requiring invention, imagination, originality or talent in a field of artistic or creative endeavor.

Creative professions are distinguished by work that primarily depends on intelligence, diligence and accuracy. An exemption under this category depends on the extent of the imagination, originality or talent used by the employee. These requirements are usually met by actors, musicians, composers, soloists, painters, writers, novelists, and others.

Teachers fall under the creative professional exemption if their main duty is teaching, tutoring, instruction, and if they are employed as a teacher in an educational institution. Exempt teachers may include: regular academic teachers; kindergarten/nursery teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal/instrument music teachers. The duty of teaching, tutoring, instructing or lecturing includes exercising discretion and judgment.

If you feel you've been misclassified by your employer, you can get more information by ordering a FREE copy of 10 Biggest Mistakes that Can Hurt Your Wage & Overtime Claim. View our Case Results to see a list of some of the workers we have helped to recover back wages and overtime pay. Contact an experienced employment attorney to answer your questions. Our Texas firm maintains a national practice. Contact us toll-free at 888-449-2068.