December 19, 2008
This is in response to your request for an opinion regarding whether Certified
Occupational Therapist Assistants (COTAs) employed by the school district
qualify as exempt professional employees under section 13(a)(1) of the Fair
Labor Standards Act (FLSA).
It is our opinion that COTAs do not qualify as exempt professionals.
The COTAs are currently classified as nonexempt, paraprofessional employees.
You state that the COTAs are requesting to be reclassified as professional
employees under section 13(a)(1). The primary duty of a COTA is assisting
occupational therapists in providing therapeutic educational programs for
students. According to the school district’s COTA job description, the only
educational requirement is that which is sufficient to obtain certification
by the state Board of Occupational Therapy Examiners. One of the prerequisites
for certification by the state is the completion of “at least 60 academic
semester credits or the equivalent from an accredited institution of higher
education.” Tex. Occ. Code Ann. § 453.203(a)(2)(B).
Section 13(a)(1) of the FLSA exempts from the Act’s minimum wage and overtime
pay provisions, “any employee employed in a bona fide . . . professional
capacity” as defined in 29 C.F.R. part 541. 29 U.S.C. § 213(a)(1).
The term “employee employed in a bona fide . . . professional capacity”
in section 13(a)(1) of the FLSA means “any employee”:
Compensated on a salary or fee basis at a rate of not
less than $455 per week . . . exclusive of board, lodging, or
other facilities; and
Whose primary duty is the performance of work [r]equiring
knowledge of an advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction.
C.F.R. § 541.300(a).
The salary information provided indicates that the COTAs are compensated
more than $455 per week as required by 29
C.F.R. § 541.600.
The primary duty test under the learned professional exemption requires that:
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.
C.F.R. § 541.301(a). The phrase “work requiring advanced knowledge”
means “work which is predominantly intellectual in character, and which includes
work requiring the consistent exercise of discretion and judgment, as distinguished
from performance of routine mental, manual, mechanical or physical work.”
29 C.F.R. § 541.301(b). “The phrase ‘customarily acquired by a prolonged
course of specialized intellectual instruction’ restricts the exemption to
professions where specialized academic training is a standard prerequisite
for entrance into the profession. The best prima facie evidence that an employee
meets this requirement is possession of the appropriate academic degree.”
29 C.F.R. § 541.301(d).
We do not believe that the COTAs meet the primary duty requirements of § 541.301(a).
The COTAs’ primary duty does not require “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(a)(2)(i).
Occupations that “require only a four-year degree in any field or a two-year
degree as a standard prerequisite for entrance into the field . . .
do not qualify for the learned professional exemption.” 69 Fed. Reg. 22,121,
22,150 (Apr. 23, 2004). See Wage and Hour Opinion Letter FLSA2005-9
(Jan. 7, 2005) (two-year associate degree paralegal programs do not qualify
as prolonged course of specialized intellectual instruction); Wage and Hour
Opinion Letter May 2, 2001 (avionics technicians with training equivalent
to associate’s degree do not qualify for the learned professional exemption)
(copy enclosed). Therefore, the completion of 60 semester hours does not
qualify as a “prolonged course of specialized intellectual instruction.”
29 C.F.R. § 541.301(d).
Further, it is our opinion that COTAs do not meet the definition of a registered
or certified medical technologist. The regulations contain specific academic
requirements for exemption:
Registered or certified medical technologists
who have successfully completed three academic years of pre-professional
study in an accredited college or university plus a fourth year of professional
course work in a school of medical technology approved by the Council
of Medical Education of the American Medical Association generally meet
the duties requirements for the learned professional exemption.
29 C.F.R. § 541.301(e)(1). Becoming a COTA only requires 60
semester hours of study, rather than the more rigorous course of study required
for registered or certified medical technologists.
The existence of a mandatory, accredited certification program for COTAs,
standing alone, does not satisfy the regulatory requirement for a prolonged
course of specialized intellectual instruction for entry into the field.
According to the Preamble to the 2004 revisions to Part 541 of the regulations:
Accredited curriculums and certification
programs are relevant to determining exempt learned professional status
to the extent they provide evidence that a prolonged course of specialized
intellectual instruction has become a standard prerequisite for entrance
into the occupation as required under section 541.301. Neither the identity
of the certifying organization nor the mere fact that certification is
required is determinative, if certification does not involve a prolonged
course of specialized intellectual instruction.
69 Fed. Reg. at 22,157.
Consequently, because the occupational therapist assistant occupation does
not require “knowledge of an advanced type . . . customarily acquired
by a prolonged course of specialized intellectual instruction,” it is our
opinion that these employees do not qualify for the “learned professional”
exemption. 29 C.F.R. § 541.300(a)(2).
Additionally, the COTAs do not qualify for the exemption for administrative
employees in educational establishments. See 29
C.F.R. § 541.204. Section 541.204 provides an exemption for employees
“whose primary duty is performing administrative functions directly related
to academic instruction or training in an educational establishment or department
or subdivision thereof.” 29 C.F.R. § 541.204(a)(2). Section
541.204(c)(2), however, states that “jobs relating to the health of the students
. . . do not perform academic administrative functions” and do not
fulfill the requirements for the educational establishments exemption.
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein.
You have represented that this opinion is not sought by a party to pending
private litigation concerning the issue addressed herein. You have also
represented that this opinion is not sought in connection with an investigation
or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is
responsive to your inquiry.
Alexander J. Passantino
Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at
We assume that the salary basis requirements under 29
C.F.R. § 541.602 are met for purposes of this reply.