U.S. Department of Labor Overtime Exemptions Under Fair Labor Standards Act (FLSA) and New Rule
The “Overtime” Final Rule, released on May 18, 2016, will take effect December 1, 2016. The rule increases the standard salary threshold under which white collar workers are eligible for overtime pay; additionally, it increases the annual salary threshold above which Highly Compensated Employees (HCE) are exempt from overtime pay. The Final Rule also establishes a mechanism for automatically adjusting these threshold rates every three years. The rule does not include any changes to the existing exemption categories and corresponding duties tests that qualify white collar workers as exempt from overtime pay requirements. This is particularly relevant to workers whose salary falls between the standard salary threshold for overtime eligibility ($47,476) and the HCE salary threshold for overtime exemption ($134,004). White collar workers may be eligible for overtime if their job duties do not meet all of the tests in one of the exemption categories.
The overtime exemption category that applies to athletic trainers is the Professional Employees category, with the new salary thresholds bolded. If your salary and job duties satisfy all of the tests in the Professional Employees category, you are not eligible for overtime pay under the new rule. Alternatively, if your salary and job duties do not meet all of the tests under the Professional Employees category, you are eligible for overtime pay under the new rule.
The FLSA exempts from its overtime and minimum wage standards employees who qualify as professionals. The professional employee exemption is comprised of three different categories: creative professional, learned professional, and teaching professional.
To qualify for the learned professional employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week, increased from $455 weekly. Under the new rule, this weekly rate threshold will automatically be adjusted every three years according to the 40th percentile of full-time salaried workers in the lowest-wage Census region (currently the South). Up to 10% of standard salary level can come from non-discretionary bonuses, incentive payments, and commissions, paid at least quarterly;
- The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
- 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.
Do Athletic Trainers Qualify as Professional Employees?
Yes. Pursuant to 29 C.F.R. §541.301(e)(8), athletic trainers are considered to generally meet the requirements of the learned professional exemption:
(a) To qualify for the learned professional exemption, an employee's primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:
(1) The employee must perform work requiring advanced knowledge;
(2) The advanced knowledge must be in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
(b) The phrase “work requiring advanced knowledge” means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
(c) The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.
(d) The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption is available to the occasional lawyer who has not gone to law school, or the occasional chemist who is not the possessor of a degree in chemistry. However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.
(e)(8) Athletic trainers. Athletic trainers who have successfully completed four academic years of pre-professional and professional study in a specialized curriculum accredited by the Commission on Accreditation of Allied Health Education Programs and who are certified by the Board of Certification of the National Athletic Trainers Association Board of Certification generally meet the duties requirements for the learned professional exemption.
(f) The areas in which the professional exemption may be available are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession. Accrediting and certifying organizations similar to those listed in paragraphs (e)(1), (e)(3), (e)(4), (e)(8) and (e)(9) of this section also may be created in the future. Such organizations may develop similar specialized curriculums and certification programs which, if a standard requirement for a particular occupation, may indicate that the occupation has acquired the characteristics of a learned profession.
**This fact sheet utilizes information included within the Department of Labor’s July 2008 Fact Sheet on Exemptions under the FLSA
For more information contact:
Amy Callender, Director of Government Affairs for NATA, at (972) 532-8853