Creative "Duties Test"


Case studies of 2-3 companies that have successfully met the creative "duties test" for employee exemption status criteria and 2-3 that were unsuccessful.

Early Findings

  • The FLSA minimum wage and overtime standards do not apply to creative, learned, and teaching professionals.
  • The creative professional status is dependent on the same " two-part analysis also applied to those professionals in the learned professional category." Both professionals must meet the salary level and standard duties test.
  • In order to "qualify as a creative professional for purposes of the FLSA minimum wage and overtime exemption," the employee must earn at least $455 weekly, be paid on a fee/salary basis, and must have "the primary duty of performing work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor."
  • Music, writing, acting, and graphic arts are the recognized fields of creative endeavors.
  • Actors, musicians, conductors, soloists, composers, some painters, some cartoonists, "essayists, novelists, short-story writers, and screen-play writers who choose their own subjects and provide a finished piece of work to their employers" among others, typically meet the requirement of work that requires originality, invention, talent, and imagination.
  • Copyists, movie/ TV animators, retouchers of photographs, and reporters who "rewrite press releases, recount routine community events, or whose work is subject to substantial control" typically do not qualify for the creative professional exam.

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