Exempt versus Non-Exempt Employees: The Professional Exemption
Professional employees such as doctors, lawyers, accountants, engineers, university professors, and artists are also exempt from the state and federal minimum wage and overtime requirements. In order to qualify for the professional exemption, an employee must meet the following criteria:
- The employee’s primary duty must be:
- work requiring knowledge of an advanced type in a field of science or learning customarily acquired by the prolonged course of specialized intellectual instruction and study as distinguished from a general academic education or apprenticeship; or
- original and creative work in an artistic field; or
- teaching, tutoring, instructing or lecturing as a teacher certified in the school system or educational establishment by which he is employed; o
- work requiring highly specialized knowledge in computer systems or software.
- The employee’s work must require the consistent exercise of discretion and judgment.
- The employee must be compensated on a salary or fee basis of at least $475 per week ($250 under the FLSA), exclusive of board, lodging or other facilities. However, lawyers, doctors, and teachers need not be paid any specific minimum salary. In addition, certain computer professionals may be compensated on an hourly basis and still be exempt; see discussion below.
This is the “short test” for determining the professional exemption.
If an employee does not meet the short test requirements, however, then the following criteria must be met in order to be considered an exempt professional employee:
- The employee must be paid on a salary or fee basis of at least $400 per week, exclusive of board, lodging or other facilities;
- The employee must meet criteria # 1 and # 2 above, plus:
- The employee’s work must be predominantly intellectual and varied in character as opposed to routine, mental, mechanical or physical work and of such character that the output produced or the result accomplished can be standardized in relation to a given period of time; and
- The employee does not devote more than 20 percent of his or her hours worked in the workweek to activities which are not an essential part of and necessarily incident to the duties described above.
In order to be considered an exempt professional, the Connecticut Department of Labor takes the view that the employee must have the education and any licenses or certifications typically required for the profession. For example, an engineer would be expected to have at least a bachelor’s degree in engineering or a related field. An individual performing engineering tasks who learned on the job but does not have a degree, or one who has a degree in an unrelated field, likely would be considered nonexempt by the Connecticut Department of Labor.
On the other hand, the fact that an employee may have a professional license or degree does not mean that he or she automatically qualifies as an exempt professional. The nature of the job duties is critical. For example, while many accountants are exempt as professional employees, an accountant who primarily performs routine bookkeeping tasks would likely be considered non-exempt.
FLSA regulations specifically address computer professionals. Notably, under the federal regulations, a computer professional need not be paid on a salary or fee basis, but can be paid on an hourly basis. Employees in computer-related occupations who are paid at a rate of at least $27.63/hour may be exempt, provided that they otherwise meet the “duties” requirements for exemption.
Note that the Connecticut regulations do not include similar provisions for computer professionals, and the Connecticut Department of Labor has not taken an official enforcement position on this issue.
In order to be exempt, the work must require theoretical and practical application of highly specialized knowledge in computer systems analysis, programming, and software engineering. While job titles are not determinative of the applicability of the exemption, common job titles include computer programmer, systems analyst, computer programmer analyst, applications programmer, applications systems analyst, software engineer, software specialist, systems engineer, and systems specialist.
To be considered for the exemption, the employee’s primary duty must consist of one or more of the following:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
- The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
- The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
- A combination of the above duties which requires a comparable level of skill.
Note that the exemption applies only to those highly-skilled employees who have achieved a level of proficiency in the area. The exemption does not include trainees or employees in entry-level positions learning to become proficient, or employees who have not attained a level of skill and expertise that allows them to work independently and without close supervision. In addition, the exemption does not include employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware or related equipment.
The level of expertise and skill required to qualify for the computer professional exemption is generally attained through combination of education and experience in the field. While such employees commonly have a bachelor’s or higher degree, no particular academic degree is required for the exemption. Also, there are no requirements for licensure or certification.
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