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 July 1, 2024, your creative professional employee must earn at least $844 per week or $43,888 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 $844 a week. Check with your state's labor office to see if your state has rules that govern pay frequency.

Note: The DOL rule published in April 2024 introduces a new methodology that will set the standard salary level at the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region. As a result:

• On January 1, 2025, an additional increase will raise the salary level to $1,128 per week or $58,656 per year. 

• Starting July 1, 2027, salary thresholds will update every three years, by applying up-to-date wage data to determine new salary levels.

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 Overtime Rule Changes Effective July 1, 2024.

Important Information: Brotherhood Mutual is pleased to provide Legal Assist as a complimentary resource. Services through Legal Assist aim to provide general legal information to our current and prospective policyholders. While the information provided is intended to be helpful, it does not constitute legal advice and should not be used as a substitute for advice from a licensed attorney in your area. Please note that no attorney/client relationship is established through this process, and no legal advice will be provided. We strongly recommend regular consultations with a local attorney as part of your risk management program.

Updated April 24, 2024

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.