How Are Creative Employees Defined For FLSA?

Wednesday, June 09, 2010

The Code of Federal Regulations, Title 29, Chapter V, Part 541, Subpart B, defines the rules for exemption of executive, administrative, professional (creative), computer and outside sales employees for the purposes of FLSA. If we focus our attention on creative employee exemptions, it becomes very clear that an analyst must look carefully at the duties of any employee or position believed to be exempt.

In general, to be considered a “creative” employee and eligible for professional exemption the position or employee must meet the following:

Compensated on a salary basis at a rate of not less than $455 per week exclusive of board, lodging or other facilities;
Primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, including music, writing, acting, and graphic arts.
``Invention, imagination, originality or talent'' distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. Duties vary widely and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee.

This requirement generally is met by:
Actors, musicians, composers, conductors, and soloists;
Painters who may be given the subject matter of their painting;
Cartoonists who are merely told the title or underlying concept of a cartoon;
And
Essayists, novelists, short-story writers, and screen-play writers

Journalists may satisfy the requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent.

Journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator.

As with any issues dealing with legal compliance, employers should seek, qualified professional assistance before making changes in their work place practices.