The FLSA and “creative professionals”

On Behalf of | Sep 22, 2021 | Employment Law -- Employer, Fair Labor Standards Act (FLSA) |

The Fair Labor Standards Act or “FLSA” creates rights and protections for workers, including the right to a minimum wage, time-and-a-half overtime pay, and restrictions on child labor. If an employer violates the FLSA, they could face serious fines or worse.

Although the law is comprehensive in scope, certain employees are exempt from FLSA protections. One of the most notable exemptions is for “creative professionals.”

For an employee to fall under this exemption, 29 C.F.R. Part 541 states that the terms of their employment must meet certain criteria, including:

  • They must receive a salary of at least $684 per week;
  • The primary duty of their work must require invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

Although the first prong is straightforward, the second prong is much more nebulous – how do you define “invention, imagination, originality,” etc.?

According to Federal Regulations Section 541.302, the work of a creative must not “primarily depen[d] on intelligence, diligence, and accuracy.”

Although this doesn’t narrow things down all that much, it’s clear that the thrust of the employee’s work must be creative. For example, a cartoonist that creates and drafts her own cartoons for a local newspaper would likely be exempt, but a journalist who interprets and analyzes facts would likely not be exempt.

Employers have rights

As an employer, you’re busy keeping your business running. You shouldn’t have to worry about frivolous FLSA lawsuits.

Thankfully, employers have clear rights under the law. If you’re faced with a lawsuit, an experienced FLSA lawyer can provide vigorous representation before a court of law, ensuring your interests are protected.

Pittsburgh residents shouldn’t hesitate to reach out. If cost is a concern, many lawyers offer a free initial consultation at no out-of-pocket cost to the client.