Let’s talk about the professional exemption under the FLSA! After all, what better way to start 2024 than to delve into the nitty gritty of regulations under the Fair Labor Standards Act?
Quick Refresher on Exemptions under the FLSA
So, one common example of wage theft that impacts South Carolina employees comes under the Fair Labor Standards Act (FLSA). The FLSA is a federal law that requires the payment of minimum wage and the payment of overtime pay (time and a half) for covered employees. Some companies, either intentional or sloppily, claim that some employees are exempt (not covered) by the overtime pay requirement, even if the company is dead wrong.
However, it is true that the FLSA’s overtime requirement does not apply to certain categories of employees, based on carve-outs in the law called “exemptions.” If an employee meets the requirements of an exemption, then the company does not have to pay overtime. The two primary exemptions are the executive and administrative exemptions, which I’ve written about before here.
The other big exemption that I’m going to talk about today is the professional exemption.
What is the Professional Exemption under the FLSA?
First, as with most exemptions, the employees need to be earning more than $684 a week in salary to meet the salary test.
Second, for the Duties Test, (1) the employee’s primary duty must be the performance of work requiring advanced knowledge (in other words, work that is predominantly intellectual in character and requires consistent exercise of discretion and judgment); (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must normally be acquired by a prolonged course of specialized intellectual instruction.
Work requiring advanced knowledge means more than a high school diploma (college, graduate school, professional schools) and is different than more routine manual or mechanical work. It’s working with your mind instead of your hands, basically.
Examples include law, medicine, theology, accounting, engineering, teaching, architecture, and types of physical, chemical, or biological sciences. So, doctors, lawyers, engineers, all the main types of professionals that kids want to grow up to be, only to grow up and become them before regretting it all forever.
Creative Professional Exemption under the FLSA
Another type of profession involves the creative arts. Creative professionals under this exemption use their inventive minds, imagination, originality, or talent for their work. Think: actors, musicians, composters, painters, writers, for example. These types of employees would not normally be able to receive overtime pay, if all requirements of the exemption are met.
As with all FLSA cases, the facts are supremely important. For any FLSA claim I look at, we examine the pay structure, daily job duties, job descriptions, and other relevant documents to determine whether an employee has been wrongfully misclassified as exempt and been denied overtime pay. The FLSA provides for unpaid overtime, liquidated damages (double damages), and attorney’s fees. These amounts can get pretty high if the misclassification affects many employees. If you have questions, feel free to reach out to our office today for a consultation.