FLSA Overtime Security Advisor

Professional Employees

You indicated that:

• The employee is paid a set fee for each job performed regardless of the time it takes to complete the job and the fee computes to a rate that would yield at least $684 per week if the employee worked 40 hours; and
• The employee's primary duty is work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Therefore, based on these responses, the employee appears to meet the duties tests for exemption as a creative professional employee. However, to qualify for exemption on a "fee basis," certain other tests must be met to demonstrate the employee is paid at a rate not less than $684 per week. You should also review the Compensation Requirements section to determine whether the employee's pay meets the criteria for exemption. An employee who does not meet all of the tests for exemption is entitled to the minimum wage and overtime pay protections of the Fair Labor Standards Act (FLSA).

If you have further questions about your situation, you may want to review Fact Sheet 17D: Exemption for Professional Employees Under the FLSA or contact your local Wage and Hour Division office.

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