How to Determine if an Employee Qualifies for the Creative Professional Exemption

Authors: Michael Cardman, XpertHR Legal Editor, and Allen S. Kinzer, Vorys, Sater, Seymour and Pease LLP

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).