How to Determine if an Employee Qualifies for the Creative Professional Exemption
- Step 1: Check That the Employee Performs Work Requiring "Invention, Imagination, Originality or Talent"
- Step 2: Confirm the Employee Performs Work in a "Recognized Field of Artistic or Creative Endeavor"
- Step 3: Be Sure That Creative Work Is the Employee's Primary Duty
- Step 4: Confirm That the Employee Is Paid on a Salary Basis or a Fee Basis
- Step 5: Consult an Attorney or DOL if the Employee Does Not Clearly Satisfy All the Requirements
- Step 6: Fulfill Recordkeeping Requirements and Memorialize the Classification
- Additional Resources
Just because an employee's work involves some creativity, as that term is commonly understood, does not mean the employee will qualify for the creative professional exemption. For example, a general assignment newspaper reporter with an eye for detail and a way with words probably will not meet the requirements. However, a big-name reporter who writes analytical or interpretive articles may qualify. Similarly, an animator who brings a cartoon character to life by drawing a series of moving images will not qualify. But the artist who comes up with the idea for the cartoon and sketches out the characters probably would. Follow these steps to determine whether an employee qualifies for the creative professional exemption under the Fair Labor Standards Act (FLSA).