“Artistic” exemption?

Is an employee who earns $95,000 preparing PowerPoint^® presentations for very high-level financial presentations exempt from overtime under the Fair Labor Standards Act (FLSA) “artistic exemption”?

“Probably not,” in the opinion of Attorney Myron Moye, speaking at the BLR^® National Employment Law Update running this Monday through Wednesday (October 19-21) in Las Vegas. Moye is with the law firm of Hanson Bridgett LLP in San Francisco.

Moye said the case came from an actual client who couldn’t understand why a $95,000 per year employee should be eligible for overtime. The client argued that the employee was highly skilled and responsible for creating a presentation that would help in a highly sophisticated sales setting. "Why wouldn’t they qualify for the FLSA’s artistic exemption?” the client asked.

Moye’s response: “The question is, ‘Is this in a recognized field of artistic or creative endeavor?’” he said. “Not really,” he answered. “Even though there are aspects of the job that require creativity, and even though this has creative aspects, the artistic exemption is really limited to people like actors, musicians, composers, conductors. In this case, it is more of a case of, ‘Here is the material. Put it together for me.'" As such, Moye didn’t think the job qualified under the artistic exemption, and he told the client so.

Moye was speaking with fellow Hanson Bridgett attorney, Sandra L. Rappaport, at the BLR workshop, “Hands-On Job Descriptions: How to Correctly Designate Workers as Exempt or Nonexempt.”

Other questions

Both Rappaport and Moye gave numerous other examples of jobs that might appear to be exempt, but probably were not. Many were questioned by participants, and finally one obviously frustrated member of the audience asked, “How do you sell this to management? They are not going to be happy being told that half our employees are nonexempt.”

Rappaport acknowledged that this is a real dilemma. Management doesn’t want to hear about it, but the risk is that a federal or state audit will uncover the situation, and cost a great deal in back wages. Just to protect themselves, she urged the personnel managers attending to make sure they at least tell management of the rules, so they understand the risk. They may say, “We’ll take the risk—it’s customary in our industry.”

“Assessing the risk is their job,” Rappaport said. HR’s job is to make sure they understand the risk.

Rappaport also advised attendees to keep time records, even if overtime is not paid. If you do not have that, and an investigation comes, the Labor Department may just estimate, which could end up being much more costly.

Job descriptions

Roye agreed that management probably does not understand the risks involved. To limit risks, he said that the other thing HR should be doing is looking at job descriptions. Make sure that they are, first of all, accurate, and secondly, that they emphasize the right things and provide “examples, not conclusions.” “Don’t say the employee ‘exercises discretion.’ Instead give an example,” he said.