Professional Exemption

Professional Exemption

The Law Offices of Kevin J. Dolley handles claims and questions involving the professional employee exemption from the pay requirements of the Fair Labor Standards Act (“FLSA”). Section 213(a)(1) of the FLSA states that any “employee employed in a bona fide…professional capacity” is exempt from its pay requirements. Our attorneys are familiar with the nature and scope of this exemption and can help advise you regarding the same.

Who is an “employee employed in a bona fide…professional capacity”?

Like other FLSA exemptions, the professional employee exemption is described in more detail by regulations promulgated by the United States Department of Labor ("DOL"). See 29 C.F.R. § 541.300, et seq. However, unlike other exemptions, there is more than one type of “professional employee” exemption. The DOL recognizes two types: the “learned professional” and the “creative professional.”

Who is a “learned professional”?

To qualify as a “learned professional employee,” the employee must:

  1. be compensated on a salary or fee basis at a rate not less than $684 per week; and
  1. whose primary duty is the performance of work:
  1. requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.

29 C.F.R. § 541.300. This requirement of advance knowledge involves three parts: (1) the employee must perform work requiring advanced knowledge; (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. § 541.301. The regulation further specifies other limitations on the exemption and some examples of occupations that do, and do not, meet the requirements of it. Id. Finally, the regulation specifically identifies practicing attorneys and doctors as exempt “learned professionals.” 29 C.F.R. § 541.304.

Who is a “creative professional”?

To qualify as a “creative professional employee,” the employee must:

  1. be compensated on a salary or fee basis at a rate not less than $684 per week; and
  1. whose primary duty is the performance of work:
  1. requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

29 C.F.R. § 541.300. The regulations elaborate on the nature and scope of this exemption. 29 C.F.R. § 541.302. For example, “recognized field of artistic or creative endeavor” includes “music, writing, acting, and the graphic arts.” 29 C.F.R. § 541.302(b). The exemption is intended to exclude “a person with general manual or intellectual ability and training” and to distinguish “creative professions from work that primarily depends on intelligence, diligence and accuracy.” 29 C.F.R. § 541.302(a), (c). And the regulation briefly describes some occupations that may or may not fall within the scope of the exemption. 29 C.F.R. § 541.302(c)-(d). Like other exemptions, the determination of its applicability “must be made on a case-by-case basis.” Id.

Contact Us

If you have further questions or concerns regarding the professional employee exemption, contact the Law Offices of Kevin J. Dolley by phone at (314) 645-4100 or by email at kevin@dolleylaw.com.

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