Fair Labor Standards Act (FLSA) Overtime Regulations

CHECKLIST - SALARY AND DUTIES TESTS FOR LEARNED OR CREATIVE PROFESSIONAL EXEMPTION FROM OVERTIME

Effective August 23, 2004

If questions A, B, & C; or A & D, are answered “yes,” the employee meets the professional exemption test.A. Is the employee paid a salary of at least $455 per week?

Yes____ No _____Note: The same criteria for “salary,” discussed under the executive exemption, apply to the professional exemption.

B. Does the employee’s primary duty consist of the performance of work requiring knowledge of an advanced type in a field of science or learning? Yes____ No _____

1. “Work requiring advanced knowledge” means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. Learned professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work. A learned professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances.

2. Advanced knowledge cannot be attained at the high school level. Requisite knowledge must be customarily acquired by a prolonged course of specialized intellectual study. In some subjects, however, the specialized intellectual study may be acquired by a combination of intellectual study and work experience.

3. “Field(s) 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 similar occupations that have a recognized professional status and can be distinguished 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.

4. Primary duty generally indicates that the principal and most important part of the job is pursuing the profession.

5. When employee spends less than majority of his/her time pursuing the profession, the exemption may still be met in view of:

a. the relative importance of the professional duties as opposed to the other types of duties;b. the frequency with which the employee exercises discretionary powers;c. the employee’s relative freedom from supervision; andd. the relationship between the employee’s salary and the wages paid to other employees who

perform the same kind of non-exempt work performed by the employee.6. The learned professional exemption is not available and does not apply for occupations which:

a. require only a four-year degree in any field or a two-year degree as a prerequisite for entrance into the field.

b. customarily may be performed with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes.

c. most employees acquire their skill by experience rather than by advanced specialized intellectual instruction.

7. The fact that an employee possesses a license to practice a certain profession must be considered along with all the other criteria in determining the exempt status of the employee. The possession of a license permitting an employee to perform duties which would meet the tests of an exempt employee does not make that employee necessarily exempt. For example, employees with cosmetology licenses are not exempt as learned professionals because the licenses do not require a prolonged course of specialized intellectual instruction.

C. Do the employee’s duties include work requiring consistent exercise of discretion and judgment? Yes____ No _____

1. Discretion and judgment may be:a. making a decision to depart from prescribed standards or permitted tolerances;b. making decisions that affect the operational policies of the employee’s department;c. formulating recommendations to a customer for the purchase of securities;d. making decisions in connection with negotiations where the individual is given “reasonable

latitude” in carrying on those discussions, which are binding on the employer;e. formulating recommendations, even if management personnel must review and accept the

recommendation prior to implementation;f. formulating or participating in the formulation of policy for the business unit; org. broad authority to commit the employer in substantial respects financially.

2. Discretion and judgment is not:a. applying knowledge, following prescribed procedures or determining which procedures to

follow;b. determining whether specified standards have been satisfied, even if there is some leeway

in reaching a conclusion;c. performing inspection functions by following established techniques and procedures with

skills acquired through special training or experience;d. formulating recommendations based upon the development of facts concerning conformity

with a known standard;e. comparing items based upon established standards, known through experience or written

manuals;f. screening applicants or conducting interviews to determine satisfaction of certain minimum

qualifications; org. making decisions that do not commit the employer in substantial respects financially or

otherwise.

D. Do the employee’s primary duties consist of activities requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor? Yes____ No _____

1. A recognized field of artistic or creative endeavor includes music, writing, acting, and the graphic arts. The work requires intelligence, diligence and accuracy with the individual having broad leeway to develop an original work product.

2. The exemption turns upon the constraints placed on the employee. Positions that primarily require fact gathering and reporting, and not creative or original analysis and interpretation, do not satisfy the standard.

3. Positions that limit the employee’s latitude, in terms of controlling the final work product, are also vulnerable to successful challenge.

4. An exempt “creative” professional 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, as opposed to routine mental, manual, mechanical or physical work. This requirement distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy.

Special provisions apply to bona fide learned professionals: (1) Any employee who holds a valid license or certificate permitting the practice of law or medicine or any of their branches, and is actually engaged in the practice thereof, and (2) any employee who holds the requisite academic degree for the general practice of medicine, and is engaged in an internship or resident program pursuant to the practice of the profession. The minimum salary and salary or fee basis requirements do not apply to the categories employees described as bona fide learned professionals. however, In the case of occupations in the medical field, the exception from the salary or fee requirement does not apply to pharmacists, nurses, therapists, technologists, sanitarians, dieticians, social workers, psychologists, psychometrists, physician assistants, nurse practitioners or other professions which service the medical profession.