The “Professional” Exemption in California
As discussed in a prior posting, California’s wage and hour law makes a distinction between “exempt” and “non-exempt” employees, not salaried versus hourly employees. Exempt employees are not entitled to overtime pay, reporting time pay, nor are they provided meal and rest break periods. The second largest category of exempt employees, after the executive exemption, are the so-called “professional” exemptions.
The professional exemption applies to employees who work in one of eight specified professions, or who work in a “learned or artistic profession.” The eight specified professions are law, medicine, dentistry, optometry, architecture, engineering, teaching, and accounting.
The “learned professional” group of employees perform advanced work in technical fields, using skills acquired through a prolonged course of specialized intellectual instruction, and the employee must have an advanced academic degree. For example, licensed social workers, a social worker with a master’s degree in social, and scientists would be considered learned professionals.
The artistic professional performs original or creative work in a recognized field of artistic endeavor such as music, writing, theater and the graphic arts. To qualify as artistic, an employee’s work must depend primarily on her invention, imagination or talent.
Similar to the executive exemption, the employee must customarily and regularly exercise discretion and independent judgment in performing the job duties and the employee spends more than half of her work time practicing in the profession.
If you believe that you are misclassified as an exempt employee, but do not meet the above test, I would urge you to contact an attorney to discuss your situation as soon as possible.