Question:

I am an occupational therapist. My employer has informed me that I have been classified as an exempt employee under the professional exemption. What does it mean to be an exempt? Have I been correctly classified?

Answer:

If an employee is classified as exempt, it means that most of the provisions of wage and hour laws do not apply to that individual. For example, exempt employees are not entitled to overtime pay, and the laws concerning meal and rest periods do not apply to them. There are several categories of exempt employees set forth in the California Wage Orders, including those who fall under the professional exemption.

The professional exemption applies to individuals who are either (1) licensed or certified by the State of California and are primarily engaged in the practice of law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting, or, (2) primarily engaged in an occupation commonly recognized as a learned or artistic profession. Under the first category, “medicine” does not provide a blanket exception for occupational, physical or speech therapists. Therefore, if you qualify under the professional exemption, you would fall under the second category – the learned profession exemption.

To qualify under the learned profession exemption, in addition to the requirement that you be primarily engaged in an occupation commonly recognized as a learned profession, you must also “customarily and regularly” exercise discretion and independent judgment in the performance of your duties, which means spending 51% or more of your work time exercising discretion and independent judgment. The Division of Labor Standards Enforcement (DLSE) has stated that the exemption requires “consistent exercise of discretion and independent judgment, control over one’s practice, and full integration in the decision-making process.” Furthermore, you must earn a monthly salary equivalent to no less than two times the state minimum wage for full time employment, which means that currently you must earn no less than $31,200.00 per year.

The more difficult question is what qualifies as a “learned profession.” Unfortunately, there is no list of “learned professions.” The “learned profession” exemption is narrowly construed under California law, but there is a possibility that an occupational therapist would qualify. In order to qualify, you must be primarily engaged in the performance of work requiring knowledge of an advanced type. The advanced knowledge must be in a field of science or learning. And the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

The requirement that the knowledge be acquired by a prolonged course of specialized intellectual instruction restricts the exemption to professions in which specialized academic training is a standard prerequisite. This normally requires the possession of an advanced academic degree and normally, more than a master’s degree is required. Federal regulations state that possession of a license is only one factor in determining if an employee qualifies for the “learned professional” exemption. For example, Certified Professional Accountants, and executive chefs that have attained a 4-year specialized academic degree qualify as learned professionals. By contrast, skilled trade persons, engineering technicians, and other occupations that cannot meet all three of the elements listed above do not qualify as exempt professionals. Additionally, the DLSE states that registered nurses employed to engage in the practice of nursing are not considered exempt professional employees unless they fall into one of three specific categories of “advanced practice” nurses.

If your position as occupational therapist required you to take a prolonged course of study to obtain knowledge of an advanced type in a field of science or learning, if you spend more than 51% of your workday regularly exercising discretion and independent judgment in the performance of your duties, and if you earn at least $31,200.00 per year, it is possible that you may qualify as an exempt employee under the learned profession exemption.

– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2007 Articles