So You Want To Be An Exempt Learned Professional?
According to the New York State Department of Labor median wage statistics (download), the top five highest paying jobs in New York State are: Physicians/Surgeons ($150,000); Dentists ($138,000); Lawyers ($132,000); Judges, Magistrate Judges and Magistrates ($126,700); and Podiatrists ($123,800). Four of the five require a professional degree; and even judges and magistrates require education beyond a bachelors degree. (Yes, podiatrists are doctors, too.)
Being a "Learned Professional" also means that you are exempt from the minimum wage and overtime pay requirements of the federal Fair Labor Standards Act (FLSA).
So what does it take to be inducted into the club of Learned Professionals, perhaps the most dignified of all of the FLSA’s exemptions?
To qualify for the Learned Professional Exemption:
- the primary duty must be work that requires advanced knowledge
- in a field of science or learning
- that is customarily acquired by a prolonged course of specialized intellectual instruction.
Under the federal regulations, "work requiring advanced knowledge'' means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. Advanced knowledge cannot be attained at the high school level.
A "field of science or learning'' includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status. The "mechanical arts" or skilled trades where in some instances the knowledge is of a fairly advanced type are generally not considered fields of science or learning.
The phrase "customarily acquired by a prolonged course of specialized intellectual instruction'' restricts the exemption to professions where specialized academic training is a standard
prerequisite for entrance into the profession. Possession of the appropriate academic degree is the best prima facie evidence that an employee meets this requirement. However, the word "customarily'' may also cover employees who attained the advanced knowledge through a combination of work experience and intellectual instruction. However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.
While the regulations have identified various professions typically included within the exemption (e.g., accountants, chefs, physician assistants et al.), and those excluded (e.g., paralegals, accounting clerks, bookkeepers, cooks et al.), the courts have, of course, varied in their approach to determining whether a particular job constitutes a learned profession. For example, a California federal court, in Campbell v. Pricewaterhousecoopers, LLP, 602 F. Supp. 2d 1163 (E.D. Cal. 2009) (download), has recently interpreted the California wage orders and labor code to be ambiguous and thus held that accountants must be CPA licensed in order to meet that state's learned professions exemption. The federal regulations have no such ambiguity, however, and do not have a license requirement for accountants. See 29 C.F.R. § 541.301(e)(5).
Wisely, the regulations have left the door wide open to the exemption being flexible enough to accommodate the progressively intellectual character of the 21st Century workplace:
The areas in which the professional exemption may be available are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession. Accrediting and certifying organizations . . . also may be created in the future. Such organizations may develop similar specialized curriculums and certification programs which, if a standard requirement for a particular occupation, may indicate that the occupation has acquired the characteristics of a learned profession.
29 C.F.R. § 541.301(f).
Caveat: As the number of computer-related jobs and advanced computer certifications grow, so will the number of issues as to whether the employee is a "Learned Professional" and/or a "Computer Employee" -- a separate and highly technical exemption that deserves to, and will be, addressed separately. Stay tuned.
