OVERTIME PROFESSIONAL EMPLOYEE EXEMPTION:
To exempt an employee from overtime pay under the “Professional Exemption,” the employer must prove ALL of the following:
- The employee is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or
- The employee is primarily engaged in an occupation commonly recognized as a learned or artistic profession. “Learned or artistic profession” means an employee who is primarily engaged in the performance of:
- Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or
- Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and
- Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
- The employee is customarily and regularly exercised discretion and independent judgment in the performance of duties set forth above.
- The employee earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).
Regarding the requirement for the exemption to apply that the employee “customarily and regularly exercises discretion and independent judgment,” this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.
For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.
For the artistic professions, work in a “recognized field of artistic endeavor” includes such fields as music, writing, the theater, and the plastic and graphic arts.
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