THE PROFESSIONAL EXEMPTION FOR OVERTIME

The professional exemption is an overtime exemption as well as an exemption from meal and rest break requirements. The professional exemption generally requires an advanced degree beyond a bachelor’s degree. California law specifically states the professional exemption covers licensed professionals such as lawyers, engineers, architects, dentists, doctors, and optometrists. Learned professionals under the exemption are people who have had a prolonged course of specialized intellectual instruction of study (a post bachelor’s degree). Social workers have been found not be exempt under these exemptions, and so have accountants without CPA licenses. The professional exemption also requires pay at twice minimum wage.

Professionals under this exemption must actually be doing work that fits under this definition. A licensed architect who spends most of her time archiving the firm’s plans should not be considered exempt. Merely archiving mass documents and reducing them to fit on a remote network is not exempt work. Likewise, a lawyer working as a file clerk is not exempt. Merely because somebody has a professional license, or is listed as being an exempt professional does not mean they will be exempt if their job is different than the ordinary meaning of what they actually do at work.

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PROFESSIONAL EXEMPTION OVERTIME LAW

The Department of Labor Standards Enforcement (DLSE) defines the professional exemption as follows:

A person employed in a professional capacity means any employee who meets all of the following requirements:

Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or

Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of:

Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or

Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and

Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.

Who earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515©.

Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.

For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.

For the artistic professions, work in a "recognized field of artistic endeavor" includes such fields as music, writing, the theater, and the plastic and graphic arts.

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