Professional Exemption

The federal Fair Labor Standards Act (FLSA) mandates that anyone employed in the United States receive federal minimum wage and overtime compensation for qualified work. However, some categories of workers are considered exempt from the FLSA’s minimum wage and overtime protections, including learned and creative professionals.

The FLSA’s professional employee exemption applies to professionals who meet certain qualifications, or tests, concerning their job duties and compensation. There are three tests under the FLSA for exempt status, and an employee must meet the requirements of each test to qualify as exempt.

The three tests are:

    1. The salary level test
      An exempt professional employee must earn at least $23,660 per year, or $455 per week.
    2. The salary basis test
      An exempt professional employee’s base salary may not change depending on hours worked or quality of work.
    3. The job duties test
      Different job duties tests apply for learned professionals (including individuals working in science, medicine, education, and law) and creative professionals (including individuals working in music, acting, writing, or the arts).

Improperly classifying professional employees as exempt is a violation of both federal and state labor law. Professionals who have been improperly classified may be entitled to back wages, overtime pay, and other damages dating back up to several years of employment.

Are You Classified Correctly?

If you believe you’ve been intentionally or inadvertently improperly classified under the professional exemption, you may be eligible to file a wage claim to recover your damages.

Understand your rights as a worker. Call toll-free (800) 254-9493 or fill out the form to speak with an employment attorney about your potential wage claims. All consultations are free and confidential.

We Get Results for Employees

Acosta $9.9 million for unpaid overtime and business expenses
Spansion $8.5 million for employees laid off without proper notice
Masco Backpay for workers who were misclassified
Fleetwood Backpay for employees laid off without proper notice
Cosmo $1 million for merchandisers who were not compensated for off-the-clock work
First Franklin Backpay for workers who were not paid overtime

Federal Professional Exemption

Learned Professionals

The FLSA clearly states that a worker’s job title, or the employer’s name for the position, cannot determine exempt status for learned professionals.

For an employee to qualify for the learned professional employee exemption, each of the following job tests on the FLSA professional exemption checklist must be met:

    • The employee must be compensated on a salary basis at a rate not less than $455 per week
    • The employee’s primary duty must be the performance of work requiring advanced knowledge (work which is predominantly intellectual in character that requires the consistent exericse of discretion and judgment)

The employee’s “primary duty” is the principal or most important duty that the employee performs or which characterizes their job as a whole.

    • The advanced knowledge must be in a field of science or learning

Examples include law, medicine, theology, accounting, engineering, architecture, teaching, pharmacy, physical, chemical, and biological sciences, and others.

    • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction

Academic training or degrees are prerequisites for entry into the profession.

Creative Professionals

Creative professionals are also classified according to job duties.

To qualify for the creative professional employee exemption, each of the following job tests must be met:

    • The employee must be compensated on a salary or fee basis at a rate not less than $455 per week
    • 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

In this sense, creative work is distinct from work which primarily relies on intelligence, diligence, and accuracy.

Teachers

Teachers are considered exempt professionals under federal law if their primary duty is to teach, instruct, tutor, or lecture in an educational establishment.

Examples of exempt teachers include:

  • Pre-school and nursey school teachers
  • Primary and secondary school teachers
  • Teachers of skilled and semi-skilled trades
  • Arts and music teachers
  • Automobile driving and aircraft flight instructors

Salary requirements to do not apply to exempt teachers under the FLSA.

Professionals in Law and Medicine

Properly licensed employees practicing medicine or law are considered exempt professionals under federal law. Legal and medical interns and residents are also considered exempt.

Salary requirements do not apply to exempt medical and legal professionals under the FLSA.

Highly Compensated Employees

The professional exemption may apply to certain high-paid professional workers, as well.

The highly compensated employee exemption, or HCE exemption, applies to professional, administrative, or executive employees who:

  1. Earn at least $100,000 a year, including a minimum of $455 in weekly salary
  2. Primarily perform office or non-manual work
  3. Regularly perform at least one of the exempt duties of an executive described in the job tests above

California Professional Exemption

The California professional exemption requirements are similar to the federal requirements but California law guarantees higher compensation to exempt employees. When federal and state exemption laws differ, employees are protected by the law which is most favorable to them.

In California, an exempt professional employee is either:

    • Licensed by the State of California and practicing in law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or
    • Primarily engaged in a learned or artistic profession

Learned professionals spend more than half of their time on work in a field of science or learning that requires advanced knowledge acquired through specialized instruction. Creative professionals spend more than half of their time on work that depends on their own invention, imagination, and talent.

To be considered exempt under California law, learned and creative exempt professionals also must:

    • Customarily and regularly exercise discretion and independent judgment in the course of their work
    • Earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment (40 hours per week)

California exempt professionals must earn a minimum salary of $840 per week or $43,680 per year.

Our Employment Experience

Our employment attorneys have been representing classes of employees in state and federal litigation against their employers for over 20 years.

We have successfully litigated employment cases concerning unpaid overtime, meal breaks, and business expenses; employee misclassification; and mass layoffs without proper notice, recovering millions of dollars on behalf of our clients against some of the world’s largest corporations.

Girard Gibbs has been recognized a Tier-1 law firm by U.S. News – Best Lawyers consecutively since 2013, and founders Daniel Girard and Eric Gibbs have been named among the Best Lawyers in America consecutively since 2012.

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