Social Workers and the Learned Professional Exemption

Both the Fair Labor Standards Act (FLSA) and the California Labor Code require employers to pay overtime to all employees who do not qualify for one of the exemptions to those statutes. One of the exemptions that both statutory schemes recognize is that for learned professionals. In this post, we consider whether a social worker meets the requirements for that exemption.

The FLSA states in section 213(a)(1) that the overtime rules do not apply to those employed in a "professional capacity." The Department of Labor has defined professional capacity in 29 CFR section 541.301 to include learned professionals whose "primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction."

California Labor Code section 515 provides an exemption for "professional employees," as defined in wage orders issued by the Industrial Welfare Commission. The wage orders include in their definitions of professional employees those who are "primarily engaged in an occupation commonly recognized as a learned or artistic profession." The learned profession exemption requires that the employee be primarily engaged in work "requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study." A glossary on the California Labor Commissioner's website states "an advanced academic degree (above the bachelor level) is a standard prerequisite" for the learned professional exemption.

In Opinion Letter FLSA2005-50, the U.S. Department of Labor stated that social workers who were required to have a master's degree in social work, drug and alcohol, education, counseling, psychology or criminal justice were exempt under the FLSA, while caseworkers who only needed a bachelor's degree in social sciences were not. The work for the bachelor's degree was not "specialized" academic training.

In Chatfield v. Children's Services, Inc., 555 F. Supp. 2d 532 (E.D. Penn. 2008), a federal judge in Pennsylvania concluded that social workers who worked as truancy prevention case managers were exempt, where they were required to have a bachelor's degree in social work, human services, or a related field, plus three years of work experience.

Most recently, in Solis v. State of Washington Dept. of Social & Health Services, Case No. 10-35590 (9th Cir. Sep. 9, 2011), the Ninth Circuit ruled that social workers who were only required to have a bachelor's degree in social services, human services, behavioral sciences, or an allied field were not exempt, because their jobs did not require "specialized" learning.

In light of all the foregoing, in California (where both the FLSA and the California wage order requirements apply), social workers will probably not be considered exempt unless the particular jobs for which they are hired required an advanced (at least a masters) degree in a specialized field that directly relates to the job.

Explicit Mutual Wage Agreements in California

A recent appellate decision explains how California employers may implement an explicit mutual wage agreement that provides for payment of a weekly salary to cover both regular hours and overtime hours. The decision in Arechiga v. Dolores Press, Inc., Case No. B218171 (Cal. Ct. App. 2/7/2011) is available here.

California law requires employers to pay overtime to all non exempt employees who work more than eight hours in a day, or more than 40 hours in a week. Usually, an employer complies with this requirement by establishing an hourly wage for its employees, and then paying the appropriate overtime rate for extra hours (time and a half for all hours over eight in a day or 40 in a week, and double time for all hours over 12 in a day).

If the employer intends a particular employee or group of employees to work a fixed schedule that will always involve the same number of overtime hours, the explicit mutual wage agreement can be used to establish a regular pay schedule without computing overtime pay each pay period. In the Arechiga case, for example, there was an agreement that the employee would work eleven hours a day, six days a week, and that he would earn 26 hours of overtime pay each week. The employer paid a fixed salary of $880 per week, to cover 40 hours at a regular hourly rate of $11.14, and 26 hours at the overtime rate of $16.71.

The employee argued that the enactment of Labor Code section 515(d) in 2000 invalidated such agreement by providing that, for a salaried non exempt employee, "the employee's regular hourly rate shall be 1/40th of the employee's weekly salary." The Court of Appeal disagreed, ruling that the salary referred to in section 515(d) was only that portion of the salary allocated to the regular hourly rate. The court explicitly disagreed with the contrary interpretation in the Enforcement Policies and Interpretation Manual published by the California Division of Labor Standards Enforcement.

An employer who wishes to implement an explicit mutual wage agreement should have each employee to whom it applies sign a document that (1) specifies the basic hourly rate of compensation on which the guaranteed salary is based before the work is performed, and (2) provides provides for payment of at least one and a half times the basic rate for all overtime hours. If the employee works more hours than those specified in the agreement, the employer will have to pay additional overtime at the appropriate rate.