This month we are discussing the Professional Exemption. This is perhaps the broadest exemption as it encompasses three groups: Learned Professionals, Creative Professionals, and Computer Professionals. To qualify for the Professional Exemption, an employee must:
Be paid on a salary basis at a rate not less than $455/week (see Salary Basis Exceptions below)
Be primarily engaged in professionally exempt work
Primary duty includes the consistent exercise of discretion and judgment in making independent choices in significant matters
SALARY BASIS EXCEPTIONS: Computer Professionals may be paid on an hourly basis, if the hourly rate is $27.63
or greater. Some professionals can be paid on a fee basis if the fee is at a rate that would amount to at least $455/week if the worker worked 40 hours.
Learned Professionals perform work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This exemption is limited to professions where specialized academic training is a standard prerequisite like:
- Actuarial computation
- Physical, chemical, and biological sciences
Federal regulations list academic teachers in educational institutions, registered or certified medical technologists, registered nurses, dental hygienists, physician assistants, certified public accountants, chefs, certified athletic trainers, and licensed funeral directors and embalmers as positions that may qualify for the exemption,
but exclude paralegals and legal assistants.
WORDS TO THE WISE: The best evidence that an employee meets this requirement is possession of the appropriate academic degree. However, positions that allow workers to have one of multiple degrees may not qualify. Similarly, equivalent experience generally does not substitute for a degree.
WORDS TO THE WISE: The work must be predominantly intellectual and varied in character so that the output or result is not standardized. For example, while technicians may possess a high degree of skill and intellectual capacity, the tasks they perform involve limited discretion or judgment and are usually non-exempt.
Creative Professionals perform work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor, such as:
- Graphic arts
Examples include actors, musicians, composers, conductors, soloists, painters, cartoonists, essayists, novelists, short story and screen play writers, but generally exclude animators, copyists, or retouchers of photos. Journalists may be included if their work is original and involves creativity rather than collecting, organizing, and reporting publicly available information.
Computer Professionals perform work requiring:
- Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
- design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
- a combination of the duties above.
Computer systems analysts, computer programmers, software engineers, or other similarly skilled workers may qualify for this exemption.
WORDS TO THE WISE: Workers engaged in technical support, the operations of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment do not qualify.
Next month, we will cover the Outside Sales and Highly Compensated Employee Exemptions.