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August 26, 2005
Dear Name*,
This is in response to your letter inquiring whether certain employees of one of your clients (the Company)
are eligible for the Section 13(a)(1) exemption from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). Specifically, you
contend that the Company’s employees at issue perform work that is original and creative in character and therefore, should be exempt in light of their
training and skills.
You describe the Company as a leader in advanced graphic arts technology. The Company specializes in graphic art wraps (Wraps), which you described as “advertisements printed on large sheets of a flexible vinyl with an adhesive back.” The Wraps are durable
and flexible so that they may be applied to curved or irregular surfaces and protuberances, or may be suspended as free-hanging banners.
There are two types of Wraps, apparently based on the weight of the vinyl, and employees become
familiar with installing both types through on-the-job training. Employees
travel to the site where the Wrap will be installed, inspect the object on
which the Wrap will be applied, position each Wrap or segment thereof in place
temporarily, and finally remove the adhesive back and adhere the Wrap to the
designated surface. Because Wraps are difficult to remove, it is imperative
that they are applied correctly on the first attempt. Employees must take into
account such variables as long-term wear, possible shrinkage, temperature changes,
challenges presented by uneven surfaces, and the possibility of vandalism.
They must assure that the customer’s logo is not obscured by shadow or placed
in an inappropriate location. They must place the most important messages in
the most visible locations. You believe that the ten individuals who apply the
Wraps may have met the criteria discussed in 29 C.F.R. § 541.3(a)(2) of the
former regulation for professionals who perform work that is “original and
creative in character in a recognized field of artistic endeavor.” You argue
that the employees should be exempt from the overtime requirements of the FLSA
“[i]n view of the training, experience, level of skill and freedom of
expression inherent in the position held by these employees.”
Section 13(a)(1) of the FLSA provides a complete minimum wage and overtime pay exemption for any employee
employed in a bona fide executive, administrative, or professional capacity, as
those terms are defined in 29 C.F.R. Part 541 of the revised overtime security
regulations which took effect August 23, 2004. An employee may qualify for
exemption if all of the pertinent tests relating to duties, responsibilities,
and salary are met.
Under 29 C.F.R. § 541.300(copy enclosed) of the revised final regulations, “[t]he term employee employed in a bona fide professional capacity…shall mean any employee:
- Compensated on a salary or fee basis at a rate of not less than $455 per week…, and
- Whose primary duty is the performance of work:
- Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction; or
- Requiring invention, imagination, originality or talent in a recognized field of artistic
or creative endeavor.”
“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.” See 29 C.F.R. § 541.302(a) (copy enclosed). 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.” See 29
C.F.R. § 541.302(b). “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.” See 29 C.F.R. § 541.302(c).
Your letter does not mention the individual or individuals who create the designs on the vinyl wraps, but
apparently the ten employees in question have no part in that process. While a
graphic designer or graphic artist performing work that is original and
creative could qualify for the creative exemption because the results of their
work are dependent primarily upon the invention, imagination or talent of the
employee, the ten employees who apply the vinyl wraps do not perform work that
meets the requirements to qualify for the section 13(a)(1) exemption. Based on
the information provided, they are not “artists” themselves, but are skilled
employees who perform manual or physical work to install an artistic product
created by someone else. Their work requires diligence and accuracy rather
than invention and originality. Thus, they would not qualify for the
exemption. See Opinion Letters dated March 26, 1978 and July 2, 1996 (stating
that a graphic designer or artist doing an original and creative work is
exempt, while graphic arts technicians performing support work or reproducing
drawings are not)(copies enclosed).
Please note that your letter states that currently the Company pays these employees “pursuant to a Belo
plan,” however, nothing in your letter details the basis for applying a Belo
plan to the Wrap installers. The provisions for use of so-called Belo plans are
provided in Section 7(f) of the FLSA and we make no judgment as to their
applicability here.
This opinion is based exclusively on the facts and circumstances described in your request and is
given on the basis of your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that
would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your request
might require a different conclusion than the one expressed herein. You have
represented that this opinion is not sought by a party to a pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or
litigation between a client or firm and the Wage and Hour Division or the
Department of Labor. This opinion letter is issued as an official ruling of
the Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C.
§ 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir. 1990).
We trust that the above information is responsive to your inquiry.
Sincerely,
Alfred B. Robinson, Jr.,
Deputy Administrator
Enclosures:29 C.F.R. Part 541.300
Opinion Letters dated March 26, 1978 and July 2, 1996
*Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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