How are specific occupations classified under the final FLSA white-collar rules?

The final regulations specifically address several occupations. Here is a summary:

• Blue-collar workers. The exemptions do not apply to manual laborers or other blue-collar workers who perform work involving repetitive operations with their hands, physical skill and energy. Such nonexempt blue-collar employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training. FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are not exempt, no matter how highly paid they might be.

• Chefs. Executive and sous chefs with a four-year culinary arts degree may be exempt learned professionals, depending on what work they actually do. Some chefs may qualify as creative professionals. Cooks who perform routine food preparation are not exempt.

• Construction workers. FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt, no matter how highly paid they might be.

• Dental hygienists/physician assistants. Dental hygienists and physician assistants who have completed four academic years of advanced study approved by specific accreditation organizations generally are exempt.

• Financial service industry employees. Employees in the financial services industry generally meet the duties requirements for the administrative exemption and are not entitled to overtime pay if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer’s financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption. In applying the exemption, it does not matter whether the employee’s activities are aimed at an end user or an intermediary. The status of financial services employees is based on the duties they perform, not on the identity of the customer they serve. As such, certified public accountants generally are exempt. Accounting clerks and bookkeepers are not exempt.

• First responders. Police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and other similar work are not exempt.

• Insurance claims adjusters. Whether they work for an insurance company or other type of company, insurance claims adjusters generally meet the duties requirements for the administrative exemption and are not entitled to overtime pay if their duties include activities such as interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual information to prepare damage estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation. The status of an insurance claims adjuster, however, does not rely on the claims adjuster job title alone. There must be a case-by-case assessment to determine whether the employee’s duties meet the requirements for exemption.

• Journalists/reporters. Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalists' duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no across-the-board exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt. Nothing in the rules relieves employers from their contractual obligations to journalists and reporters under collective bargaining agreements. In addition, journalists and reporters paid by the hour are entitled to overtime.

• Nurses. Registered nurses who are paid on an hourly basis are nonexempt. However, registered nurses who are registered by the appropriate state examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt. Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.

• Paralegals. Most paralegals are not exempt due to limited educational prerequisites. Paralegals who apply advanced specialized knowledge may be exempt.

• Technologists and technicians. Technologists and technicians, such as engineering technicians, ultrasound technologists, licensed veterinary technicians, avionics technicians and other similar employees are nonexempt because they generally do not meet the requirements for the learned professional exemption. They do not work in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession.

• Veterans. Veterans are not exempt administrative, executive or professional employees based upon their status as veterans. Military training, for example, generally is not sufficient to meet the requirements for the professional exemption. No amount of military training will satisfy the requirements of the learned professional exemption because the exemption applies only to employees who are in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession. No amount of military training can turn a blue collar occupation or a technical field into a profession. For example, a veteran who has received substantial military training as a veteran but works on a manufacturing production line or as an engineering technician is not exempt.