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HR Best PracticesFair Labor Standards ActOvertimeFeaturedFebruary 1, 2013by Stanton LawDrawing a Very Fine Line: Determining Creative Professional Exemption Status Under the FLSA

Who is an artist? For that matter, who gets to decide? These are existential questions rarely touched upon by folks who are not artists themselves.  But if your business employs creative types, you, unfortunately, must also wade into this philosophical quagmire, at least for the purposes of determining whether the artist is entitled to overtime pay.  It’s an issue with real-world, not just ethereal, consequences.

Among the employees exempted from the overtime requirements of the federal Fair Labor Standards Act are those workers who engage in certain creative endeavors.  If they meet the federal notion of a “creative professional,” they are not entitled to overtime pay (i.e., they are “exempt”); if they do not meet the regulatory criteria, they must be paid one-and-one-half times their regular rate for all hours worked in excess of 40 hours worked in a workweek (i.e., they are “nonexempt.”)  Hard and fast guidelines for determining who is sufficiently “creative” to be exempt under the FLSA do not exist; instead (perhaps fittingly), the Department of Labor’s regulations on the subject are open to interpretation.  Here are some tips for determining the exempt/nonexempt status of your creative professionals.

First and foremost, “creative professional” status is subject to the same two-part analysis also applied to those professionals in the “learned professional” (such as doctors, lawyers, and accountants) category—both must meet 1) the salary level test, and 2) the standard duties test. Like learned professionals, to meet the salary prong of the two-part test, creatives must earn at least $455 per week, paid on a salary or fee basis.

Next you must examine employees’ duties to determine whether they meet the second prong of the exemption test.  The federal regulations’ general rule for exempt creative professional employees states that their duties must “requir[e] invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.”  29 C.F.R. § 541.300(a)(1)(ii).  While the definition of “invention, imagination, originality, or talent” is the subject of some debate, the “recognized fields of artistic or creative endeavor” are generally what you’d expect: music, writing, acting, graphic and three-dimensional art and design, and occasionally fields such as culinary arts.

Federal Regulations Section 541.302 sheds some light on “invention, imagination, originality, or talent,” by contrasting this work with that which “primarily depends on intelligence, diligence, and accuracy.”  In an economy increasingly infused with marketing and media, however, this line becomes harder and harder to draw.  Traditional artists, like painters, novelists, or composers, would clearly meet the duties prong of the creative professional test.  Ironically, however, these “true creatives” are seldom actually bona fide employees on your payroll.

The following are illustrations categories of creatives who can be either exempt or nonexempt, depending on the exact nature of their duties:

  • Journalists. Journalists are usually NOT going to meet the creative professional exemption category, but occasionally do. Many journalists work for smaller papers, news outlets, or news services where their primary responsibilities involve gathering and recounting public information and facts in a fairly routine, objective fashion.  Journalists whose work involves extensive investigation, analysis, or opinion (particularly senior editors at highly respected publications) are occasionally found to be exempt.
  • Chefs.  Many, if perhaps most, food service professionals responsible for preparing meals in restaurants will NOT meet the creative professional exemption.  A few elite chefs who create the innovative menus and original recipes on the cutting edge of gourmet cuisine will qualify as exempt.
  • Cartoonists. A cartoonist whose work is largely the result of her own ideas and imagination with only the most general input about the work’s concept or theme ARE likely exempt.  Those who prepare a cartoon for publication, however, like an inker, penciler, colorist, or letterer, are likely NOT exempt.
  • Advertising. Don Draper – likely exempt.  Peggy Olson – possibly exempt.  Stan Rizzo – probably NOT exempt (ten bucks if you remember who Stan Rizzo is without looking)*.

These examples illustrate factors that weigh in favor of exempt creative professional status: the more independently the professional works, the more likely he is to be exempt.  The more abstract the category of artistic media, such as music or visual arts, the more likely the worker is to be considered exempt. Workers in fields serving more practical needs, such as news media or culinary arts are less likely to be exempt.

Be mindful of the fact that a professional’s talent or skill is often irrelevant to her exemption status—an employee may create exquisite illustrations, delicious delicacies, or brilliant campaigns and still fail to meet the two-prong test for creative professional exemption status.  It is a matter of whether the duties of the worker’s position qualify the worker for exempt status, not how well the worker preforms those duties.

* By “ten bucks” I mean permission to pat yourself on the back.  I won’t actually give you any money.