Overview of the FLSA Exemptions - Creative Professionals

Doctors, Lawyers, Teachers, Nurses, Scientists, Writers and Artists are often considered to be professionals who are not entitled to minimum wages and overtime pay. While this is often correct, analysis of the specific exemption requirements of the Fair Labor Standards Act (“FLSA”) is required to determine whether a particular employee is entitled to overtime or not. According to the federal regulations, there are two types of professionals: Learned Professionals and Creative Professionals. In this post, we will discuss the requirements for the Creative Professional exemption.

The Creative Professional

In order to qualify for the Creative Professional exemption, the FLSA requires that the following requirements are met:

1. The Creative Professional must be paid a salary of at least $455 per week;
2. The Creative Professional’s primary duty must be to perform work requiring invention, imagination, originality or talent; and
3. The invention, imagination, originality or talent must be in a recognized field of artistic or creative endeavor. See 29 C.F.R. 541.302.

Unless each of these requirements are met, the worker will be entitled to overtime and minimum wages. In the paragraphs that follow, we will provide you with an overview of the analysis that must go into determining whether these requirements are met. One key point to remember while reading is that it is the employer’s burden to prove that its employee is exempt from the minimum wage and overtime pay provisions of the Act.

First, the employer must show that the worker receives a true salary. As we have discussed in other posts, there are many pitfalls to a salary that can prevent the applicability of the FLSA exemptions. For example, certain deductions may cause an employee who would be otherwise exempt from overtime to be entitled to both minimum wages and overtime pay. If you have had deductions to your pay, you should contact an experienced wage and hour law attorney to make sure that such deductions do not make you eligible for minimum wages and overtime pay. For more information about whether you are being properly paid on a salary, please review this article on the characteristics of a salary.

Second, the employer must show that your primary duty is to perform work requiring “invention, imagination, originality or talent” as distinguished from professions that primarily depend on intelligence, diligence and accuracy. This requirement is generally met by “actors, muscians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the tile or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayist, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers (the majority of such persons are, of course, not employees but self-employed); and persons holding the more responsible writing positions in advertising agencies.”  29 C.F.R. 541.302. The exemption is not generally met by animators and copyists whose work is often not creative in character.

Finally, the work performed must be in a “recognized field of artistic or creative endeavor.” Recognized fields include music, writing, acting and the graphic arts. Journalists are a good example of an often difficult gray area. A journalist who collect, organize and record information that is routine or already public is not generally exempt because they are not required to be creative in their job duties. For example, many newspaper reporters simply rewrite press releases, write standard recounts of public information or whose work is subject to substantial control by their employer do not ordinarily satisfy the exemption and are entitled to overtime. However, journalists who perform on the air in radio, television or other electronic means, conduct investigative interviews, analyze or interpret public events, write editorials or act as a commentator are often exempt creative professionals.