Creative "Duties Test"

Goals

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.

Proposed next steps:

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