Employers must be careful about classifying professional creative workers
Complying with the Fair Labor Standards Act may seem simple enough - the three biggest rules require employers to respect child labor laws, pay employees hourly workers minimum wage for their time and attendance as well as time-and-a-half if their schedules exceed 40 hours in a single week. Businesses might assume that hiring adult staff members for salaried positions frees them of those concerns because annual sums are generally higher than $7.25 per hour and cover all work performed in a week regardless of the number of hours. But this is a common misconception.
Paying people on a salary basis does not mean they are not owed overtime for putting in long hours, according to the Fair Labor Standards Act (FLSA). There are exemptions that apply to individuals in highly paid positions, who act as executives, perform certain administrative tasks or are hired in professional roles that require advanced education or creativity. Companies should be particularly careful about the last exemption.
Professional is a general term, but it is not applicable across the board. The FLSA establishes that employees are exempt as creative professionals only if the tasks they regularly perform actually require creativity, opinions, analysis or narration. Workers in graphics arts, writing, acting and music positions that perform routine manual, mechanical, physical or mental work may not be considered under the same exemption umbrella.
Because these rules can be difficult to navigate, many companies outsource human resources professionals to reduce liability and stay in compliance.
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