(a) To qualify for the creative professional exemption, an employee's primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work. The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training.
(b) To qualify for exemption as a creative professional, the work performed must be “in a recognized field of artistic or creative endeavor.” This includes such fields as music, writing, acting and the graphic arts.
(c) The requirement of “invention, imagination, originality or talent” distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. The duties of employees vary widely, and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Determination of exempt creative professional status, therefore, must be made on a case-by-case basis. This requirement generally is met by actors, musicians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers (the majority of such persons are, of course, not employees but self-employed); and persons holding the more responsible writing positions in advertising agencies. This requirement generally is not met by a person who is employed as a copyist, as an “animator” of motion-picture cartoons, or as a retoucher of photographs, since such work is not properly described as creative in character.
(d) Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent, as opposed to work which depends primarily on intelligence, diligence and accuracy. 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. Thus, for example, newspaper reporters who merely rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters also do not qualify as exempt creative professionals if their work product is subject to substantial control by the employer. However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator.
Notes of Decisions
Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010).
· cites it 5× “2006); see 29 C.F.R. § 541.302 (d). Plaintiffs were also granted summary judgment on other issues, from which CDN has not appealed.”
Freeman v. Nat'l Broad. Co., Inc., 846 F. Supp. 1109 (S.D.N.Y. 1993).
· cites it 7× “” 29 C.F.R. § 541.302 (b). The knowledge must be “in a field of science or- learning,” 29 C.”
Wang v. Chinese Daily News, Inc., 435 F. Supp. 2d 1042 (C.D. Cal. 2006).
· cites it 3× “” 9 29 C.F.R. § 541.302 states that, “to qualify for the creative professional exemption, an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeav- or as opposed to…”
Reich v. Newspapers of New England, Inc., 44 F.3d 1060 (1st Cir. 1995).
· cites it 7× “" 29 C.F.R. § 541.302 (d). Moreover, "[t]he typical symbol of the professional training and the best prima fade evidence of its possession is, of course, the appropriate academic degree, and in these professions an advanced academic degree is a standard (if not universal)…”
Joanie Dybach v. State of Florida Dep't of Corr., 942 F.2d 1562 (11th Cir. 1991).
“However, regardless of the amount of pay per week, before a particular position can qualify as one which climbs to the level of the professional exemption of section 213(a)(1), the duties of that position must call for a person who is in a learned profession with at least a…”
California Sch. of Culinary Arts v. Lujan, 2003 Cal. Daily Op. Serv. 8565 (Cal. Ct. App. 2003).
“’ [][] The [federal] regulations at 29 C.F.R. § 541.302 (g)(2) provide that teaching personnel may include, inter alia, teachers of music, trades, automobile driving, and aircraft flight instructors.”
Travis Paul v. Petroleum Equip. Tools Co., 708 F.2d 168 (5th Cir. 1983).
· cites it 2× “” See 29 C.F.R. § 541.302 (e)(1). We also are persuaded that this knowledge is today, by necessity, “customarily acquired by a prolonged course of specialized intellectual instruction and study as distinguished from a general academic education and from an apprenticeship and…”
Busk v. Integrity Staffing Solutions, Inc. (In Re Amazon.com, Inc.), 905 F.3d 387 (6th Cir. 2018).
“0116 ( 29 C.F.R § 541.302 ; see also NAC § 608.100(3)(c) (stating that the Nevada minimum wage provisions do not apply to "[a] person employed as a trainee for a period not longer than 90 days, as described the United States Department of Labor pursuant to section 6(g) of the…”
Bolduc v. Nat'l Semiconductor Corp., 35 F. Supp. 2d 106 (D. Me. 1998).
· cites it 2× “See 29 C.F.R. § 541.302 . Pursuant to the Secretary’s regulation, to be exempt from the FLSA’s overtime requirement, an employee’s “primary duty” must consist of “[w]ork requiring knowledge of an advance [sic] type in a field of science or learning customarily acquired by a…”
Hurst v. Youngelson, 354 F. Supp. 3d 1362 (N.D. Ga. 2019).
“" 29 C.F.R. § 541.302 (a). Plaintiff moves for summary judgment, asserting that she does not qualify as a creative professional.”
— 29 C.F.R. § 541.302(d) — 1 case
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