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elaws - employment laws assistance for workers and small businesses - FLSA Overtime Security Advisor

Professional Employees

The FLSA contains an exemption from the payment of both minimum wage and overtime pay to any employee employed as a bona fide professional employee, as that term is defined by the Regulations, Part 541.

The professional exemption contains two main categories:

  • Learned - Generally, to meet the tests for exemption as a learned professional, the employee must perform work that requires advanced knowledge typically acquired by a prolonged course of specialized academic instruction. Learned professional employees can be found in law, medicine, teaching, engineering, science and other similar fields.

  • Creative - To qualify for exemption as a creative professional, the employee must perform work that requires invention, imagination, originality or talent. The work is in a recognized field of artistic or creative endeavor such as music, writing, acting, the graphic arts and other similar fields.

The focus of the duties tests for exemption is the employee's primary duty. Primary duty means the principal, main, major or most important duty that the employee performs. The determination of an employee's primary duty must be based on all of the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. While time is not the sole test, as a guideline, an employee who spends more than 50 percent of his or her time performing a specific activity can generally be said to have that activity as his or her primary duty. If the employee spends less than 50 percent of his or her time performing his or her major or most important duty, the employee may still meet the primary duty requirement if other factors support that conclusion. Please review the definition of primary duty for further guidance on this requirement.

Please select the category that best reflects the nature of the employee's primary duty:

Teacher
Lawyer
Doctor, medical resident or medical intern
Learned (other than teacher, lawyer or doctor)
Creative
None of the above