Although the vast majority of employees are owed overtime compensation, there are a few positions that are overtime exempt including: management-level employees and teaching, learned, and creative professionals. In this brief article, a Tampa overtime lawyer will discuss how to classify whether or not you are considered a creative professional by the Fair Labor Standards Act (FLSA). Remember, if you are owed unpaid overtime compensation, consult our Tampa overtime lawyers.
What is Legally Considered a Creative Professional?
To be considered a creative professional, an employee must:
- Earn at least $455 per week
- Be paid on a salary basis
- Perform primary work tasks “requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”
Creative professionals that are overtime exempt are determined on a case-by-case basis depending on their work tasks. For example, the Department of Labor typically considers actors, musicians, composers, and soloists to be creative professionals. Similarly, certain painters, writers, and designers are considered creative professionals. However, in the case of a journalist, determining whether or not this professional is considered creative depends on whether or not their position is primarily focused on “invention, imagination, originality or talent.” For example, if their position’s main focus requires them to “collect, organize, and record” information, their occupation is not considered creative.
Ways Employers Skirt the Issue
As you can see, the definition of what exactly a creative professional entails is complex. Many professionals are considered creative professionals by their employer when their position’s primary tasks actually focus more on performing non-creative tasks. Unfortunately, many fields that rely on creative professionals create a crunch culture that requires these workers to work long hours while not being compensated overtime.
Employers either fail to pay their workers one-and-a-half times their hourly rate for every hour worked over 40 in a workweek or simply stop compensating them after 40 hours because they are considered salaried. Regardless of the wage and hour violation, the professional is being misclassified and should be paid overtime.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.