The professional exemption in California makes some professional employees exempt from certain wage and hour laws. These include rights that entitle employees to minimum wage, overtime pay, and rest and meal breaks.
An employee is considered “professional” if he or she gets paid on a salary basis, the salary meets a certain minimum level, and the worker performs specific types of duties in the performance of his/her work. Other employees with exempt status include executives, administrative employees, outside salespeople, and computer employees.
Employers do make errors when determining if an employee is a professional. If an error is made, and the mistake results in the employee not receiving overtime pay or a minimum wage, then he/she may:
Note that there is a federal law regarding exempt professional employees. The law is found in Section 13(a)(1) of the Fair Labor Standards Act (FLSA).
Federal law defines a “professional” in much the same way as California law. When there are differences in the two sets of laws, California employers are supposed to apply the set that provides the employee with the most protection.
Our California labor and employment lawyers will answer the following 4 top questions about the professional exemption:
- 1. What employee rights are affected by the professional exemption?
- 2. What is a “professional employee” under California’s labor laws?
- 3. What if an employer makes a mistake in determining employee exemption?
- 4. Are these workers exempt under federal?
1. What employee rights are affected by the professional exemption?
Professional employees are exempt from the following employee laws and rights:
- California’s minimum wage laws (an hourly rate which helps establish a State-wide minimum salary requirement for an employee’s work time),
- state overtime rules, and
- laws entitling workers to rest periods and meal breaks.1
“Exempt,” means that the professional worker does not enjoy the benefits that these laws provide. For example, exempt professional workers do not receive extra pay for working overtime.
Note that workers of professional status are not the only type of workers exempt from these laws. Other workers not subject to the laws include:
- administrative employees under the administrative exemption,
- outside salesmen under the outside sales exemption, and
- executives under the executive exemption.
Note that employees that receive protection under the above laws are often referred to as:
- nonexempt workers, or
- nonexempt employees.
2. What is a “professional employee” under California’s labor laws?
State law uses two different tests to determine if an employee is an exempt professional. The worker must pass both of them to be labeled as a professional.
The two tests are:
- the salary test, and
- the job duties test.2
2.1. Salary test
The salary test means that a worker is only a professional if he/she:
- makes a salary, and
- makes one at a specific salary level.3
Professionals that get paid on an hourly basis, and not with a minimum salary, typically are not exempt employees.
For purposes of this statute, a “salary” is a fixed amount of money that:
- a worker receives for his time and services, and
- is paid no matter how many hours the professional works.4
The specific salary that a professional must make to pass this test is:
- a monthly salary, and
- a monthly salary equivalent to “no less than two times the state minimum wage for full-time employment.”5
“Full-time employment” is working 40 hours per week.6
Using 2021 minimum wage figures, the minimum salary for an exempt professional employee at a business with 25 or fewer employees is:
- approximately $4,507 per month, or
- about $54,080 per year.
2.2. Job duties test
The job duties test says that employees are only professionals if they perform certain tasks or duties in:
- their performance of work,
- primary duty, and/or
- business operations.7
The test only pertains to the actual duties that a worker performs. It does not consider an employee’s:
- job titles, or
- job description.8
Specific exempt work duties that pass the test are those completed in relation to:
- a “recognized profession,” or
- a “learned” or “artistic” profession.9
Examples of recognized professions include white-collar professions like:
- law, and
Note that a recognized profession usually requires more than an academic degree or even an advanced degree.
A learned profession is one that involves advanced knowledge or intellectual instruction in a field of science (e.g., a job in systems analysis).10 A profession falling into this category is often referred to as meeting the “learned professional exemption.” (Learn about the computer professional exemption.)
An artistic profession is one in a recognized field of artistic and creative endeavor (e.g., cartoonists).11 A profession falling into this category is often referred to as meeting the “creative professional exemption.”
Note that artistic professions do not include mechanical arts or skilled trades.
Note too that all professions under this test must involve the consistent exercise of discretion and independent judgment over a prolonged course.12
3. What if an employer makes a mistake in determining employee exemption?
If an employer makes an error in classifying an employee as a professional, and it results in the employee not receiving minimum wage or overtime pay, then he/she may:
- sue the employer in a wage/hour lawsuit, and
- try to recover any unpaid overtime wages.
Note that California law says that employees who do not fall under the overtime exemption because they are not professionals must be paid for time and a half when they work:
- more than 8 hours in a day,
- more than 40 hours in a single workweek, and/or
- more than 6 days in a workweek.13
Note that misclassified employees may also be entitled to money for past meal and rest breaks. If so, they can ask for this money in their wage/hour lawsuit.
4. Are these workers exempt under federal?
According to the law, professional workers are exempt from the FLSA’s:
- minimum wage, and
- overtime standards.14
A worker is a “professional employee,” under federal law, if he/she:
- is compensated on a salary or fee basis,
- earns not less than $455 per week, and
- performs duties related to either
- a creative profession,
- a learned profession, or
- a teaching profession.15
The requisite duties that a worker must perform to be labeled a professional are similar to those described under California law.
Note that when there are differences in the two sets of laws, California employers are supposed to apply the set that provides the employee with the most protection.16
For additional help…
For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide free consultations and bona fide legal advice that you can trust.
- See, for example, Labor Code 512. See also 8 CCR 11040.
- 29 C.F.R. § 541.600(a) and 29 C.F.R. § 541.601(a)(2).
- 8 CCR 11040.
- Negri v. Koning & Associates (2013) 216 Cal.App.4th 392.
- 8 CCR 11040.
- See same.
- See same.
- 9 C.F.R. § 541.2 (federal regulations governing exemptions).
- 8 CCR 11040.
- See same.
- See same.
- See same;
- California Labor Code 510.
- 29 USC 213(a)(1).
- See same.
- 29 U.S.C. § 218. See also Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21.