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:
Creative Professional Employee Exemption Test
To qualify as a creative professional for purposes of the FLSA minimum wage and overtime exemption, the employee must meet the following criteria:
- Earn not less than $684 per week on a salary or fee basis (except for $455 in Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands and $380 for Samoa);
- be compensated on a salary or fee basis; and
- have the primary duty of performing work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
- Recognized Field of Artistic or Creative Endeavor
- Invention, Imagination, Originality, or Talent
- General Manual or Intellectual Ability and Training
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:
- 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.
The following do not typically qualify for the creative professional exemption:
- 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.
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)