• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Learned Professional Exemption

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

cricketthedog

Junior Member
What is the name of your state (only U.S. law)? WV

Can experience learned on the job be used as "customarily acquired" education as apposed to a college degree to use the Learned Professional Exemption on an employee? Employee operates equipment.
 


Zigner

Senior Member, Non-Attorney
According to this site (http://www.personnel.wv.gov/SiteCollectionDocuments/Policies/FLSA.pdf), no. Because:

To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not
less than $455 per week• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined
as work which is predominantly intellectual in character and which includes work requiring the
consistent exercise of discretion and judgment
• The advanced knowledge must be in a field of science or learning, and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction
 

eerelations

Senior Member
"Learned Professionals" are usually professors, teachers, consultants, advisors, etc. Many of these people operate equipment on a daily basis. Said "equipment" is usually things like personal computers, phones and photocopiers. However, the operation of this equipment is not a fundamental part of the Learned Professionals' jobs, rather it is a means to ensure the fundamental bit gets done.

Is your employee a professor, teacher, consultant or an advisor? What kind of equipment does he/she operate?
 

cricketthedog

Junior Member
"Learned Professionals" are usually professors, teachers, consultants, advisors, etc. Many of these people operate equipment on a daily basis. Said "equipment" is usually things like personal computers, phones and photocopiers. However, the operation of this equipment is not a fundamental part of the Learned Professionals' jobs, rather it is a means to ensure the fundamental bit gets done.

Is your employee a professor, teacher, consultant or an advisor? What kind of equipment does he/she operate?
Employee operates granulating equipment, fluid beds, fitzmills, blenders, tablet presses, coating machines.. all of this equipment is used to make tablets in a pharmaceutical plant. Employee's major duty is to process powders, but she occasionally trains new employees on operating the same equipment. She has many years of experience and is pretty much an expert and is used to troubleshoot equipment when things are not processing well.
 

justalayman

Senior Member
Employee operates granulating equipment, fluid beds, fitzmills, blenders, tablet presses, coating machines.. all of this equipment is used to make tablets in a pharmaceutical plant. Employee's major duty is to process powders, but she occasionally trains new employees on operating the same equipment. She has many years of experience and is pretty much an expert and is used to troubleshoot equipment when things are not processing well.
so the employee provides manual labor.

that is not anything close to what the learned professional exemption is considering.
 

cricketthedog

Junior Member
so the employee provides manual labor.

that is not anything close to what the learned professional exemption is considering.
That brings me to my problem. This employee has formally questioned her exempt status. If she is changed to non-exempt hourly, her hourly rate would be several dollars an hour above the range of pay that is allowed for an hourly paid person in our company. Would lowering her hourly pay to the range allowed be considered retaliation for questioning her exempt status? Or is our company just going to have to expand the range of pay and just convert her salary to hourly?
 

cbg

I'm a Northern Girl
Is she aware that her pay as a non-exempt employee would be less? How much overtime does she work?

She's right to question her exempt status if that's the one you're using for her - there's no way that job description qualifies as a Learned Professional.
 

justalayman

Senior Member
That brings me to my problem. This employee has formally questioned her exempt status. If she is changed to non-exempt hourly, her hourly rate would be several dollars an hour above the range of pay that is allowed for an hourly paid person in our company. Would lowering her hourly pay to the range allowed be considered retaliation for questioning her exempt status? Or is our company just going to have to expand the range of pay and just convert her salary to hourly?
First you need to start calculating what you might owe her for unpaid overtime at the rate of pay she was earning at the time she may have not been paid for overtime. Cut a check for that. You cannot undo that damage so plan on paying her what she is owed, if anything while you fix this issue.

Then, unless there is a contract in place (including a collective bargaining agreement) there are no requirements you pay her anything more than you choose to pay her. You can legally reduce a persons pay if you choose to. In turn they can quit and probably be awarded unemployment benefits due to the change of terms but that is another issue.


Understand you have no legal choice here. You are required to classify her and treat her as non- exempt. Failure to do so will result in serious issues for the employer.
 

cbg

I'm a Northern Girl
She does not have a legal choice with regards to making the employee non-exempt; that is a given. The employee does not qualify to be exempt.

She does have a legal choice with regards to the rate of pay, and as I understand it that is what she is asking about. There is a reason for my questions.
 

cricketthedog

Junior Member
Is she aware that her pay as a non-exempt employee would be less? How much overtime does she work?
She was told that if we change her status to non-exempt that she would have to take a pay cut even though her duties would not change and even though it was an error on our part for classifying her as exempt salary. She has not worked any overtime in the last 8 months, prior to that, maybe a few hours a week here and there.
 

justalayman

Senior Member
She was told that if we change her status to non-exempt that she would have to take a pay cut even though her duties would not change and even though it was an error on our part for classifying her as exempt salary. She has not worked any overtime in the last 8 months, prior to that, maybe a few hours a week here and there.
in most situations I have seen the dol can go back 2 years regarding errors in pay.


regardless of anything else; you do not have the choice of not reclassifying her as non-exempt. What you do regarding her pay after that is up to you.

btw; whether she is paid salary or not is not the issue. One can be non-exempt and still be paid a salary. Exempt simply means they do not have to be paid overtime if working over 40 hours per week.
 

cbg

I'm a Northern Girl
Okay, I guess I wasn't explicit enough. My fault - you answered what I asked.

When you told her that she would have to take a pay cut, what was her response?

I really, truly am going somewhere specific with this.

Just to reiterate, leaving her as exempt is not an option. You MUST change her to non-exempt. What we are trying to evaluate is which is your better option with regards to her pay.
 

cricketthedog

Junior Member
When you told her that she would have to take a pay cut, what was her response?
Ok sorry.. It seemed like she had done some research or was being advised by someone that may know the law. When she was told of the pay cut, she responded, very confidently saying that a reduction in pay would be considered retaliation. She was told that it was not retaliation. She responded by saying that a pay cut is an "adverse employment action" and would violate the anti-retaliation for asserting rights under the FLSA in violation of Section 15(a)(3).
 

justalayman

Senior Member
If she is reduced to a pay level equal to others in similar assignments and similar seniority I do not see how it can be claimed it is retaliation. The pay as it is was the error and the employer is simply correcting the error, including the excessive pay that went along with the job position improperly classified as exempt.

wait for cbg to comment though. She's pretty good at this stuff and knows it much better than I.
 

cricketthedog

Junior Member
If she is reduced to a pay level equal to others in similar assignments and similar seniority I do not see how it can be claimed it is retaliation.
As for equal pay level, there is a big disparity in the pay of the employees in this department, as much as $20,000 a year for doing same job. Just happens that she is the most senior person in the department.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top