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August 27, 2010
Professional Exemption? Get Real about It
An article from law firm Fisher & Phillips focused on professional exemption from the Fair Labor Standards Act (FLSA), citing what the authors call the ‘Duck Test.’ That is, if it looks like a duck (read professional), sounds like a duck, and swims like a duck, then it must be a duck. Not so, say the authors, who cite a recent lawsuit.

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An engineer and several others worked as product design specialists for a maker of hydraulic power units. The individual had 20 years’ experience in engineering and was a member of the American Society of Mechanical Engineers. His job not only paid more than that of mechanical designers, but it was exempt, while designers were nonexempt.

This specialist worked for 3 years until he was laid off in 2004. Then he sued the employer, charging that he was really nonexempt and was owed overtime for all service. Both the district court and the appeals court agreed with him.

Appeals judges laid out a three-part test for professional exemption: (1) The employee has advanced knowledge, (2) the knowledge is in a field of science or learning, and (3) it is “customarily acquired by a prolonged course of specialized intellectual instruction and study.” That third factor was the problem for this plaintiff, who does not have a college degree—nor did his co-workers with the same job title. So he won his case. Young v. Cooper Cameron Corp., U.S. Court of Appeals for the 2nd Circuit, No. 08-5847-cv (11/12/09).

Tip: This employer’s violation was ruled willful—a costly judgment—because it knew its designers and specialists did the same work.

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