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Defending Wage Claims in Florida: The Creative Professional Exemption

Labor Law blocks

As an employer, you are required under federal and state laws to follow certain guidelines when it comes to overtime and minimum wage payments to your employees. To protect yourself from potential wage claims, it’s important to keep proper documentation and accurate record keeping of your employees’ vacations, holidays, hours worked, etc.

In some cases, there may be applicable exemptions that apply to an employee who brings a wage claim against you. One of these is known as the professional exemption.

What is a Creative Professional Exemption?

The Fair Labor Standards Act (FLSA) defines the professional exemption to include three broad categories:

  • Teaching professional
  • Creative professional
  • Learned professional

Creative professionals must not earn less than $455 a week, must be compensated on a fee or salary basis.  This weekly requirement is expected to increase to $679 a week by the end of 2019. In addition to the salary requirements, the employee’s primary duties must require the use of imagination, invention, or talent in a recognized artistic or creative field. An employee who primarily works with intellectual ability or general manual training does not qualify as a creative professional for the exemption under 29 CFR 541.302(a).

Examples of Exempted Creative Professionals  

Understanding who qualifies under a creative professional exemption can be challenging. This is why it’s important to speak with a labor and employment lawyer who can ensure you are in compliance with all federal and state laws.

Under the law, fields that are recognized for their creative or artistic endeavors include writing, acting, music, and graphic arts. The work must be distinguishable from work that requires accuracy, diligence, and specific knowledge and intelligence to complete. Some examples of creative professionals can include:

  • Composer
  • Musician
  • Actor
  • Painter (can only be given subject matter to paint)
  • Conductor
  • Some employees holding responsible positions in an advertising agency
  • Cartoonist (can only be assigned title or concept)
  • Writers who choose their own subject matter and provide the finished product to the employer

Employees whose primary duties include performing on television, on the radio, or in some other type of media outlet may qualify. Some people who don’t qualify include people who just do photo retouching, an animator on a movie or television show, or a reporter who primarily rewrites press releases or whose material is subject to substantial control at work.

Determining whether or not an employee is an exempt creative professional often comes down to the job requirements rather than the particular employee’s education.

Retaining a Florida Labor and Employment Attorney

As an employer, it’s imperative that you ensure that all of your policies and procedures comply with all applicable employment laws. At Pincus & Currier LLP, we specialize in helping small- and medium-sized businesses with their employment and labor law needs. Even small businesses are bound to the same laws as large corporations. While you may not have the financial resources or need for an in-house legal team, you can’t afford not to at least meet with a Florida employment and labor law attorney.

If you have questions about creative professional exemptions or any other aspects of defending wage and overtime claims. Contact our West Palm Beach office at 561-868-1340 to schedule a consultation.

Resource:

dol.gov/whd/regs/compliance/hrg.htm

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