29 C.F.R. § 541.100.  The helicopter pilots you describe do not qualify as exempt executive employees because their primary duty is not managing the department or subdivision in which they are employed.  See 29 C.F.R. § 541.100(a)(2).  Rather, their primary duty is piloting helicopters.  Furthermore, there is no indication that the pilots regularly supervise two or more full-time employees or have the authority to hire or fire other employees.  See 29 C.F.R. § 514.100(a)(3), (4). 

The term “employee employed in a bona fide administrative capacity” means “any employee”:

29 C.F.R. § 541.200.  The helicopter pilots you describe are not exempt administrative employees because their primary duty is piloting a helicopter, which does not qualify as “office or non-manual” work.  See 29 C.F.R. § 541.200(a)(2).  Moreover, the helicopter pilots’ primary duties are not directly related to the management or general business operations of their employer or their employer’s customers.  See 29 C.F.R. § 541.201(a).

The term “employee employed in a bona fide professional capacity” means “any employee”:

29 C.F.R. § 541.300.

The primary duty test under the learned professional exemption requires that:

29 C.F.R. § 541.301(a).  The phrase “work requiring advanced knowledge” means “work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work.”  29 C.F.R. § 541.301(b).  The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the learned professional exemption “to professions where specialized academic training is a standard prerequisite for entrance into the profession” rather than a general academic degree, an apprenticeship, or “training in the performance of routine mental, manual, mechanical or physical processes.”  29 C.F.R. § 541.301(d).  The Preamble to the 2004 revised Part 541 regulations maintains “that aviation is not a ‘field of science or learning,’ and that the knowledge required to be a pilot is not ‘customarily acquired by a prolonged course of specialized intellectual instruction.’”  69 Fed. Reg. 22,122, 22,156 (Apr. 23, 2004).

WHD’s longstanding position is that pilots do not qualify for the professional exemption under section 13(a)(1).   See Wage and Hour Opinion Letter January 20, 1975 (copy enclosed).  The primary duty of pilots does not “[r]equir[e] knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.”  29 C.F.R. § 541.300(a)(2)(i); see also 69 Fed. Reg. at 22,156.  “While it is true that the duties of many helicopter pilots and copilots require considerable knowledge of navigation, meteorology, engineering and flight theory, and they must pass stringent examinations given by Federal Aviation Administration, it is still the experience in actual flight which is the most important element in qualifying as a pilot or copilot.”  Wage and Hour Opinion Letter January 20, 1975.  Therefore, because the helicopter pilots do not satisfy the duties requirement under the regulations, they are not exempt professional employees under the Act. 

WHD, however, takes a position of non-enforcement with regard to pilots and copilots of airplanes and rotorcraft who hold an FAA Airline Transport Certificate or Commercial Certificate, and who receive compensation on a salary or fee basis at a rate of at least $455 per week, and who are engaged in the following activities:

See Wage and Hour Division Field Operations Handbook § 52L01; Wage and Hour Opinion Letters February 7, 1992, September 2, 1975, January 20, 1975, and May 25, 1971 (copies enclosed).

This non-enforcement position does not apply to airplane and helicopter pilots engaged in agricultural crop-dusting operations.  This policy also does not relieve an employer from compliance with the minimum wage and overtime pay standards for support and maintenance personnel covered by the FLSA.  In addition, this non-enforcement position does not apply to employees, including pilots and copilots, subject to the provisions of the McNamara-O’Hara Service Contract Act, the Davis-Bacon Act, and the Contract Work Hours and Safety Standards Act, nor relieve any employer from any obligation incurred under a collective bargaining agreement or any liability incurred in a private suit under section 16(b) of the FLSA.

This opinion is based exclusively on the facts and circumstances described in your request and is given based on 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 letter might require a conclusion different from the one expressed herein.  You have represented that this opinion is not sought by a party to 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. 

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).