Exemptions from Wage and Hour Requirements: Professional

Although both federal and state law exempt professional employees from the wage and hour laws, the application of the exemption to some employees differs. The exemption under the federal Fair Labor Standards Act is for an employee (1) who is compensated on a salary or fee basis at a rate of not less than $455 per week, and (2) whose primary duty is the performance of work (i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, or (ii) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. See 29 CFR section 541.300.

The California wage orders provide an exemption for an employee (1) who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or (2) who is primarily engaged in an occupation commonly recognized as a learned or artistic profession, and (3) who customarily and regularly exercises discretion and independent judgment in the performance of duties, and (4) who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment (which equates to $640 per week).


Under both standards, "learned" means 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, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes. "Artistic" or "creative" means work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee.

Under this standard, a radiology technologist is not exempt, but a physician's assistant is. The difference is the level of knowledge and extent of learning required. A television news anchor was not exempt, because he spent most of his time on the mundane activity of collating material from various news sources for presentation on the newscast, and then read from a teleprompter. Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal.App.4th 555, 38 Cal. Rptr.2d 221 (1995). A news commentator may be creative enough to qualify for the exemption.

Although the federal and state standards are similar, the result is not always the same. Pharmacists and registered nurses are exempt professionals under the FLSA, but not under the California wage orders. Nurse practitioners are exempt under the California wage orders.

Some professionals are exempt even if not paid on a salary basis:

• Under the FLSA, an attorney with a license to practice law is automatically exempt without regard to the method or level of compensation. That is not the rule under the California wage orders.
• The FLSA exempts licensed physicians and those with medical degrees enrolled in internship and resident programs, without regard to the method or level of compensation. Licensed physicians who earn at least $69.13 per hour (adjusted annually) are exempt under California law, but interns and residents are not.
• Computer professionals who meet the separate duty requirements set out in 29 CFR section 541.400, are exempt from FLSA provisions if they receive at least $27.63 per hour. The California wage orders contain a similar exemption if the employees receive at least $38.89 per hour (adjusted annually).

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.