The Creative Professional Exemption under the Fair Labor Standards Act (FLSA)

An employee who is employed as a “creative professional” is exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)See 29 U.S.C. § 213(a)(1).  To qualify for the FLSA’s creative professional exemption, an employee must meet the following requirements:

  • The employee must be compensated on a salary basis or fee basis at a rate of not less than $455 per week; and
  • The employee’s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

29 C.F.R. § 541.300.  “Recognized fields of artistic or creative endeavor” include fields such as music, writing, acting, and the graphic arts.  Routine mental, manual, mechanical, or physical work and work which can be produced by a person with general manual or intellectual ability and training generally does not qualify.  See 29 C.F.R. § 541.302.

Minnesota law has a similar exemption from its minimum wage and overtime requirements for creative professional employees.  See Minn. Stat. § 177.23, Subd. 7(6).  To qualify for the creative professional exemption under Minnesota law, an employee must satisfy at least one of two tests.  Under the first test, the employee must:

  • Receives at least $250 per week in salary or fee;
  • Perform work requiring invention, imagination, or talent in a recognized field of artistic endeavor; and
  • Consistently exercise discretion and judgment.

Under the second test, the employee must:

  • Receive at least $170 per week in salary or fee;
  • Perform original work dependent on the person’s own creativeness in a recognized field of artistic endeavor;
  • Consistently exercise judgment and discretion;
  • Perform predominantly intellectual work so varied that the output cannot be standardized by time necessary for accomplishment; and
  • Devote less than 20 percent of the hours worked to activities not essential to the person’s professional work.

See Minn. R. § 5200.0210.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on September 10, 2012, in Wage and Hour and tagged . Bookmark the permalink. Leave a comment.

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