Unpaid Wages: FLSA Exemptions for Learned & Creative Professionals

Under the Fair Labor Standards Act, an employee is entitled to be paid overtime wages unless that employee is subject to an exemption. The FLSA lays out numerous (and often confusing) categories of exemptions. One of those exemptions is the Professional Exemption. Determining whether an employee is exempt from overtime pay based on the Professional Exemption to the FLSA can be either crystal clear or wildly subjective. The Professional Exemption is broken into two categories: learned professional and creative professional. Either way, these exemptions require a guaranteed salary of at least $684 per week ($35,568 per year).

The Learned Professional Exemption

To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:

The employee must perform work requiring advanced knowledge;
The advanced knowledge must be in a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

The relevant FLSA regulations provide a few more points of clarification: The learned professional exemption does not apply to jobs where skills are typically acquired through apprenticeship or on the job training. Just because an employee has a bachelor’s degree – or even more – does not make them a learned professional in the eyes of the FLSA.

Some jobs clearly satisfy this test: doctors, lawyers, pharmacists, scientists. For these professions, the issue is almost never in doubt. Further: The following professionals, following four academic years of pre-professional and professional study, generally meet the duties requirement for the learned professional exemption: registered nurses, dental hygienists, physician assistants, certified public accountants, chefs, athletic trainers, and funeral directors or embalmers. 29 C.F.R. § 541.301(e). However, paralegals, bookkeepers, accounting clerks, and cooks generally do not qualify for the learned professional exemption. Engineers also qualify for the exemption. The real debate is always on the margins. Here are some examples:

Probation officer. Although the job required a bachelor’s degree, that degree could be in any subject. The appellate court ultimately held that the generic requirement of any bachelor’s degree cut strongly against application of the learned professional exemption. The 11^th Circuit Court of Appeals reversed the trial court’s grant of summary judgment in favor of the employer and remanded the case for further proceedings (i.e. trial). Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1565 (11th Cir. 1991).

Construction superintendent. A construction superintendent who held a bachelor’s degree in civil engineering, maintained various professional licenses with the State of Florida, and completed 14 hours of continuing education every two years qualified for the learned professional exemption. Note that the court also found the employee exempt under the executive exemption (the takeaway there: multiple exemptions can apply to any one job). Stevins v. Provident Const. Co., 137 F. App’x 198, 199 (11th Cir. 2005)

Executive chef. “Chefs, such as executive chefs and sous chefs, who have attained a four-year specialized academic degree in a culinary arts program, generally meet the duties requirements for the learned professional exemption. BUT: The learned professional exemption is not available to cooks who perform predominantly routine mental, manual, mechanical or physical work.” Wells v. Gourmet Servs., Inc., No. 2:13-CV-516-MEF, 2014 WL 3611819, at *10 (M.D. Ala. July 21, 2014). In this case, the court denied defendant’s motion for judgment on the pleadings based on disputed facts over what the chef’s job actually entailed. The plaintiff had at least four years of study at various culinary schools. However, the plaintiff said he performed menial labor and the defendant – naturally – said he was the brains of the kitchen operation.

High-level litigation support personnel. This one is somewhat mind-blowing. The plaintiff was employed in New York as a Litigation Graphics Consultant. She had a bachelor’s degree and a law degree. She was paid $75,000 per year. Her job primarily consisted of reviewing and revising graphics and graphics presentations that would be used during trials and major hearings. In a shocker, the court held that the plaintiff was not exempt under either the learned professional exemption or the creative professional exemption. With respect to the former, the court held that the plaintiff’s degrees were not necessary for the job, as evidenced by the fact that other graphics consultants had no such degree. And if you are wondering about the creative professionals part of this: The court held that the plaintiff’s work did not involve invention, imagination, or analysis – but instead consisted of revising graphics that were created based on a pre-existing set of facts/materials. Kadden v. VisuaLex, LLC, 910 F. Supp. 2d 523, 539 (S.D.N.Y. 2012)

Some types of nurses. Registered nurses who are licensed with the state are generally exempt under the learned professional exemption. However, LPN’s and other similar healthcare workers are not exempt. The wrinkle arises when companies use a variety of nurses (regardless of education/licensure/credential) for other functions. Great example: Utilization review nurse. In one case, the court granted summary judgment in the plaintiffs’ favor re learned professional exemption. There, the company employed both RNs and LPNs as utilization review nurses. The court held that although certain nurses had more education/certification, that was irrelevant because the job did not actually require that. Clark v. Centene Co. of Texas, L.P., 44 F. Supp. 3d 674, 681 (W.D. Tex. 2014), aff’d, 656 F. App’x 688 (5th Cir. 2016).

The key takeaways regarding the learned professional exemption:

The more education that is absolutely required, the greater likelihood that the exemption applies.
Just because an employee has a degree or an advanced degree does not mean the exemption applies. The exemption only applies where the degree/study/learning was necessary for the position.
The requirement of a generic degree (i.e. any bachelor’s degree will do) cuts against the learned professional exemption.
Extensive licensure and continuing education requirements weighs in favor of the exemption applying when combined with other, formal education.

The Creative Professionals Exemption

Overtime exemption under this classification absolutely calls for a case-by-case analysis. The FLSA regulations state that the employee’s primary duty must require invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor (like music, writing, acting and graphic arts).

Typically, this requirement is met by actors, musicians, composers, conductors, painters (although they can be given a subject to paint); cartoonists (who might be given a title or underlying concept, but must rely on their own creative ability to express it); essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers; and some advertising executives.

Journalists may satisfy the duties requirements for the creative professional exemption depending on their degree of creative independence. However, employees of newspapers, magazines, tv stations, and other media are nonexempt if they only collect, organize, and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. Let’s consider some examples:

High-level litigation support personnel. See above for the full write-up on this case. It’s worth repeating: Litigation support workers who create graphic presentations for hearings and trial are generally not exempt. This is because the job lacks a sufficient degree of creative independence. (Kadden SDNY).

Television professionals (writer/editor and producers). Nearly 150 employees of NBC sued the company seeking overtime pay. The plaintiffs were writers, editors, and producers. The trial court held that the plaintiffs were not exempt and were entitled to overtime. The United States Court of Appeals for the 2nd Circuit rejected that holding and reversed. The 2nd Circuit held that high-level tv writers, editors and producers at a national network undeniably do work that is creative and original— and that they cannot be compared to small town newspaper reporters who are, for instance, assigned to cover town council meetings. Freeman v. Nat’l Broad. Co., 80 F.3d 78 (2d Cir. 1996).

Executive chefs (again). Strangely enough, it is not uncommon to see this issue litigated. Defendants almost always try to claim that executive chefs are subject to the learned professional exemption (see above). But in some instances, defendants also claim the creative professional exemption. In order for the creative professional exemption to apply to an executive chef, the chef’s primary duty must be creating and designing new and unique dishes. Does a true gourmet chef meet that requirement? Perhaps. Does the typical executive chef, who also spends a significant amount of time on the line in the kitchen? Probably not. Sometimes, the issue is too close to call. One New York court denied summary judgment in a chef FLSA case and sent the case to trial to determine whether or not any exemptions applied. See Karropoulos v. Soup du Jour, Ltd., 128 F. Supp. 3d 518, 530 (E.D.N.Y. 2015)

Portrait photographers. Once again, it’s easy to see how these lines get blurred. An employee working at a big box store just taking portrait photos with no creative/artistic input (think old school Sears) is clearly not exempt under the creative professional exemption (and probably wasn’t paid enough money to trigger the exemption). But assume the salary requirement is satisfied. Now, let’s change the facts: The studio portrait photographer has an art degree. She has creative freedom and control in her work. She gets to create the scene, change the backgrounds and lighting, pose the subjects, and edit/manipulate/and enhance the final product. Still not exempt? Too close to call. One federal court denied summary judgment based on those same facts. Asp v. Milardo Photography, 573 F. Supp. 2d 677, 693 (D. Conn. 2008)

Exotic dancers. Somebody really tried to make this argument. A male strip club in Georgia argued that its dancers were exempt from overtime pay under the creative professional exemption. In rejecting this argument, the court held that the company hired the employees based on their looks and no actual dancing talent was required. Henderson v. 1400 Northside Drive, Inc., 110 F. Supp. 3d 1318, 1320 (N.D. Ga. 2015)

The key takeaways regarding the creative professional exemption:

The job must entail true creative freedom.
Remember: That creativity must be the primary duty of the job.
The less originality and the more corporate control, the less likely the creative exemption applies.

Jonathan Pollard is an employment and competition lawyer based in Fort Lauderdale, Florida. He is the founder of Pollard PLLC. The firm has extensive experience litigating a wide range of employment claims, including claims for unpaid wages and violations of the Fair Labor Standards Act. Pollard has appeared in or on the New York Times, the Wall Street Journal, Bloomberg, Law360, the Daily Business Review, The Guardian (London), PBS NewsHour and more. For legal assistance, please contact Pollard PLLC at 954-332-2380. If you would like to receive updates from Jonathan Pollard regarding law, litigation, and business, please follow him on LinkedIn.