PROFESSIONALS
This page provides general information on the exemption from overtime pay for certain licensed professionals.
California law requires that most employees in California be paid at least minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 8 hours in a day or 40 hours in a workweek.
However, the IWC Wage Orders provide an exemption from overtime pay for licensed professionals who meet certain tests regarding their job duties and who are paid at least $640 per week on a salary basis.
Job titles do not determine exempt status. In order for the exemption to apply, an employee’s specific job duties and compensation must meet all the requirements summarized below.
There are two categories of professions: Learned and Creative. Both types of professionals are those whose work is “predominately intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work.”
The Department of Labor Standards (“DLSE”) defines “Professional Employee” as follows:
“Learned Professional”- A person 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
“Creative Professional”- A person who is primarily engaged in the performance of:
- (i) 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, or work that is an essential part of or necessarily incident to any of the above work; or
- (ii) 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 or work that is an essential part of or necessarily incident to any of the above work; and
- (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
In order to be exempt under the Professional Exemption, the employer has to prove that the employee does the following:
- 1. customarily and regularly exercises discretion and independent judgment in the performance of duties set forth above
- The term "customarily and regularly exercise discretion and independent judgment," means that the employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.
- 2. Earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment or at least $640 per week, which is equivalent to $2,773.33 per month or $33,280 per year
DID YOU KNOW:
- The “learned Professional exemption only requires learning only above the high school level but only if the degree is in the field of science or learning, and is required for the employee's position.
- Paralegals, registered nurses, pharmacists, and most school teachers are non-exempt under this exemption.
- Accountants are exempt only if they are certified public accountants.
- Licensed civil, mechanical and electrical engineers are exempt, but junior drafters or engineers are not.
For more information about Professionals see Opinion Letters from the California Division of Labor Standards Enforcement:
| Letter No. |
Description |
|
2003.01.15 |
(Exempt status: Professionals) |
| 2002.03.01 |
(Wages: Salary basis test exempt employees) |
| 2003.01.13 |
(Exemption: Site surveillance technicians- Not Exempt) |
|
1997.03.05 |
(Exemption: Driving Instructors- Not Exempt) |
| 2003.01.17 |
(Exemption: Teachers) |
If you are an professional or are in the learned or artistic profession, but feel your position has been misclassified to avoid overtime pay, please call our office at (310) 277-2323 or contact us online for a free consultation.
