Creative Professional Employee Exemption – FLSA


The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime standards employees who qualify as professional employees. 29 USC 213(a)(1). The professional employee exemption is made up of three different categories:

29 CFR 541.300-304


Creative Professional Employee Exemption

To qualify as a creative professional for purposes of the FLSA minimum wage and overtime exemption, the employee must meet the following criteria:

29 CFR 541.300; 29 CFR 541.302


Definitions




Recognized Field of Artistic or Creative Endeavor

Recognized fields of artistic or creative endeavors include music, writing, acting, and graphic arts. 29 CFR 541.302(b)



Invention, Imagination, Originality, or Talent

Work that requires invention, imagination, originality, and talent is distinguishable from work that depends on intelligence, diligence, and accuracy. This requirement is typically met by, including others:

  • actors,
  • musicians,
  • composers,
  • conductors,
  • soloists,
  • painters what at most are given the subject matter of their painting,
  • cartoonists who are only told the title or underlying concept of a cartoon,
  • essayists, novelists, short-story writers, and screen-play writers who choose their own subjects and provide a finished piece of work to their employers,
  • individual holding more responsible positions in advertising agencies, and
  • professionals whose primary duty is performing on the air in radio, television, or other electronic media outlet; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinions, or commentary; or narrating or commenting.

29 CFR 541.302(c)-(d)

The following do not typically qualify for the creative professional exemption:

  • copyists,
  • animators on movie or television cartoons,
  • retouchers of photographs, and
  • reporters who rewrite press releases, recount routine community events, or whose work is subject to substantial control.

29 CFR 541.302(c)-(d)



General Manual or Intellectual Ability and Training

Employees who perform work with general manual or intellectual ability and training do not qualify as exempt creative professionals. 29 CFR 541.302(a)


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