Q: Is our employee exempt from the Fair Labor Standards Act (FLSA) as a "creative professional" employee?

A: Salary level, salary basis, and job duties will be taken into consideration to decide if the creative professional exemption from the Fair Labor Standards Act applies.

To determine if the creative professional exemption applies, the U.S. Department of Labor’s Wage and Hour Division will look at three issues: salary level, salary basis, and job duties.

Because the consequences of misapplying the professional exemption can be costly, ministries are encouraged to seek a local attorney’s assistance when considering these questions and making a final determination.

Salary Level. As of January 1, 2020, your creative professional employee must earn at least $684 per week ($35,568 per year for a full-year worker) to qualify for the exemption. Compensation may be paid biweekly, semimonthly, or monthly, but it must equal or exceed $684 a week. Check with your state's labor office to see if your state has rules that govern pay frequency.

Salary Basis. Your creative professional employee must earn a salary. This means he or she receives a predetermined amount for any week in which work is performed, regardless of the quality or quantity of the work.

Job Duties. To qualify for the creative professional exemption, an employee’s primary duty must include performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

Occupations recognized as “creative professional” include those involving music, writing, acting and graphic arts.

If you think a particular position might qualify for the “creative professional” exemption, it may be helpful to ask the following questions:

• Does this employee spend more than half of his or her time performing work that requires invention, imagination, originality, or talent?
• Are this employee’s duties primarily creative in nature?
• Do this employee’s duties involve a recognized field of artistic or creative endeavor?

Because the consequences of misapplying the creative professional exemption can be costly, ministries are encouraged to seek a local attorney’s assistance when considering these questions and making a final determination.

Recommended Resources

If you found this information helpful, you might be interested in these other resources from Brotherhood Mutual:

• Learn how to avoid the most common wage and hour mistakes in our article Overtime: Does Your Ministry Comply?
• Improve your compliance with FLSA requirements by following the suggestions in our article What Pay Records Should Ministries Keep?
• Read about common FLSA exemptions in our article New Overtime Rule Changes for 2020.

*Important information: Brotherhood Mutual is pleased to provide Legal Assist as a complimentary resource. The services we offer through Legal Assist are intended to provide general legal information to our current and prospective policyholders.

The information we provide is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. Accordingly, no attorney/client relationship is created through this process, and no legal advice will be provided. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.