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New Guidelines Regarding the Fair Labor Standards Act (FLSA)
effective August 23, 2004
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LEARNED PROFESSIONAL EXEMPTION
To qualify for the computer employee exemption, all of the
following tests must be met:
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The employee must be compensated on a salary or fee basis at a rate not less than $455 per week;
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The employee’s primary duty must be the performance of work requiring advanced knowledge,
defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of
discretion and judgment;
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The advanced knowledge must be in a field of science or learning; and
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The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction.
TERMS DEFINED:
Salary Basis- Being paid on a “salary” basis means an employee regularly
receives a predetermined amount of compensation each pay period on a weekly, or
less frequent, basis. The predetermined amount cannot be reduced because of
variations in the quality or quantity of the employee’s work. Subject to
exceptions listed below, an exempt employee must receive the full salary for any
week in which the employee performs any work, regardless of the number of days or
hours worked.
Work Requiring Advanced Knowledge- Professional work is therefore distinguished
from work involving routine mental, manual, mechanical or physical work. A
professional employee generally uses the advanced knowledge to analyze,
interpret or make deductions from varying facts or circumstances. Advanced
knowledge cannot be attained at the high school level.
Discretion and Independent Judgment- In general, the exercise of discretion and
judgment involves the comparison and the evaluation of possible course of
conduct and acting or making a decision after the various possibilities have
been considered. The term must be applied in the light of all the facts involved
in the employee’s particular employment situation, and implies that the employee
has authority to make an independent choice, free from immediate direction or
supervision. See Factors to Consider.
Field of Science or Learning- Fields of science or learning include law,
medicine, theology, actuarial computation, engineering, architecture, teaching,
various types of physical, chemical and biological sciences, pharmacy and other
occupations that have a recognized professional status and are distinguishable
from the mechanical arts or skilled trades where the knowledge could be of a
fairly advanced type, but is not in a field of science or learning.
Customarily Acquired by a Prolonged Course of Specialized Intellectual
Instruction- The learned professional exemption is restricted to professions
where specialized academic training is a standard prerequisite for entrance into
the profession (e.g., an Engineering degree is required to be a Facilities
Construction Engineer). However, the word “customarily” means the exemption may
be available to employees in such professions who have substantially the same
knowledge level and perform substantially the same work as the degreed
employees, but who attained the advanced knowledge through a combination of work
experience and intellectual instruction. This exemption does not apply to
occupations in which most employees acquire their skill by experience rather
than by advanced specialized intellectual instruction.
FACTORS TO CONSIDER FOR DETERMINING
LEARNED PROFESSIONAL EXEMPTION
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Advanced knowledge cannot be attained at the high school level. For example, many jobs where the minimum requirements do not require a
specific college or university degree but rather a high school degree and relevant experience such as Administrative Assistant or
Computer Production Specialist would not be exempt under the Learned Professional category.
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The learned professional exemption is not available for occupations that may be performed with:
- Only the general knowledge acquired by an academic degree in any field
- Knowledge acquired through an apprenticeship
- Training in the performance of routine mental, manual, mechanical or physical processes
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The exemption also does not apply to occupations in which most employees acquire skill by experience. However, a combination of intellectual
instruction and work experience can substitute.
For example Registered Nurses are considered exempt as a learned professional and can be acquired through a four year college degree in Nursing
or with an Associate degree which is not to be confused with a Licensed Practical Nurse which is non-exempt.
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When employees spends less than majority of his/her time pursuing the profession, the exemption may still be met in view of:
- The relative importance of the professional duties as opposed to the other types of duties;
- The frequency with which the employee exercises discretionary powers;
- The employee’s relative freedom from supervision and
- The relationship between the employee’s salary and the wages paid to other employees who perform the
same kind of non-exempt work performed by the employee.
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