Understand the fine line between an exempt professional and nonexempt technician

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in Leaders & Managers,Management Training

To save on overtime costs, employers often try to shoehorn employees into Fair Labor Standards Act (FLSA) exemptions. That can be a potentially devastating mistake.

This square-peg-in-a-round-hole problem often occurs when employers try to fit employees into the FLSA’s professional exemption. Remember, to claim the exemption for a “learned professional,” employers must show:
  • The employee is paid a salary of at least $455 per week.
  • The job’s primary duty must be the performance of work requiring advanced knowledge, defined as work that is “predominately intellectual in character and which includes work requiring the consistent exercise of discretion and judgment.”
  • The advanced knowledge must be in a field of science or learning, and it must be “customarily acquired by a prolonged course of specialized intellectual instruction,” typically at the college level.
Taking an essentially technical position and calling it “professional” won’t fly.

Recent case:
Two helicopter pilots sued the Port Authority of New York and New Jersey for unpaid overtime, saying they were improperly labeled as nonexempt professionals. The Port Authority argued the pilots had been properly classified.

After looking carefully at the required training and certifications, the court sided with the pilots.

Although the men held several licenses, they weren’t required to have a college or other advanced degree. And they spend very little time in the classroom. Instead, most of their training consists of actually flying and logging their flight hours.

That, according to the court, qualified them as trained technicians, not exempt professionals. (Pignataro, et al., v. Port Authority of New York and New Jersey, No. 08-3605, 3rd Cir., 2010)

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