Welcome to the final installment of my blog series on the white collar overtime exemptions. Today I will discuss addresses the learned professional exemption, which applies primarily to highly educated employees. The Fair Labor Standards Act (FLSA) states that “professionals” are exempt from overtime. The Department of Labor has interpreted this phrase as referring to learned professionals who meet the following three-part test:
The employee’s primary duty requires advanced knowledge, is predominantly intellectual in character, and requires the consistent exercise of discretion and judgment;
The employee works a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
This blog post discusses each of these three requirements in turn. It also discusses the related exemption for creative professionals such as artists and musicians. As is true for the other white collar exemptions, learned professionals must be paid according to the salary basis test.
Advanced Knowledge Which is Predominantly Intellectual in Character and Requires Discretion
A learned professional’s job must be primarily intellectual in character, and must require the consistent exercise of discretion and judgment. (Careful readers will note that the exercise of individual discretion and judgment is a key component of all of the white collar exemptions). People who perform rote or routine work are not learned professionals.
This advanced knowledge cannot be learned at the high school level – a learned professional must have a college degree, and in many circumstances will have an advanced degree. This high level of academic achievement is the defining attribute of the learned professional exemption, and employees whose work does not require an advanced education are not exempt under this provision.
The Advanced Knowledge Must Be in a Field of Science or Learning
The regulations also require that the knowledge must be in a “field of science or learning.” This phrase is broadly defined, and the regulations give several examples such as law, medicine, theology, accounting, actuarial computation, engineering, and architecture. Of course, this is not an exclusive list, and many other fields also qualify, provided that they involve knowledge gained after a long course of study.
Primarily manual tasks do not qualify as fields of science and learning, even if they are complex. An electrician’s job is certainly complicated, and requires a specialized knowledge of circuit design. Nonetheless, electricians do not qualify as learned professionals because this is not considered a “field of science or learning.”
The Knowledge Is Customarily Acquired By A Prolonged Course Of Specialized Intellectual Instruction
Finally, the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. This essentially means a college degree or its equivalent.
Not every employee with a college degree is a learned professional. A learned professional’s education must be specifically geared towards the work he or she actually performs. Many job positions require that the employee have a college degree of some kind, or accept individuals with degrees in any number of fields. These do not qualify as learned professionals. For example, a company advertising for an entry-level bookkeeper position may require applicants to have a college degree in a general business or liberal arts-related field. This is not sufficiently specialized to qualify a learned professional. By contrast, if the position requires applicants to have a degree in accounting or finance only, along with a CPA designation, it would qualify as exempt.
The creative professional exemption is a subset of the learned professional exemption that applies to artists, musicians, writers, and other creative workers. To qualify as a creative professional, the individual must exercise ‘‘invention, imagination, originality or talent’’ in a recognized creative endeavor. This exemption is fairly straightforward. The only murky area is situations where an artist works at someone else’s direction. The question then becomes whether that individual employee exercises enough individual creative license to qualify for the exemption.
If you have questions about the application of the learned professional or creative professional exemptions at your company, or believe that you may have been misclassified as overtime exempt, call me at (504) 267-0777 or email today.