Saturday, July 19, 2008

The Legal Definition of "Professional"

I didn't think I needed to play lawyer here, but it seems that many of you are taking offense at my use of the term "professional" in a previous post.

I use "professional" strictly in the legal sense of the word. It has nothing to do with how hard you work, whether you act and dress professionally, or if you work in an office. You may be highly intelligent and educated, and you may do a very important and valuable service for society, but this doesn't necessarily mean you are a "professional," according to California law.

If you are insulted by my usage, you're wasting your time getting angry at me.

Without getting overly technical, let me explain. Pursuant to California law, there are five categories of "professionals" who are exempt from overtime pay requirements:
  1. Executives. To be an "executive," you must get a salary of at least $640 a week and (a) manage a whole department, (b) direct the work of at least two subordinates, (c) have the authority to hire and fire, (d) exercise independent business judgment, and (e) spend more than 50% of your time doing (a) through (d).
  2. Administrators. If you spend over half your work time assisting the proprietor or other exempt individuals in "servicing" a business in matters of significance, you are exempt. Basically, this means you don't do "production" work, i.e., you support the business itself, rather than make the end product. You exercise discretion and independent judgment. You must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.
  3. Learned/Artistic Professionals. To qualify for this, you must (a) be licensed by the State of California in an area such as law, medicine, engineering, accounting, etc. and be working in that field; or (b) have an advanced degree beyond a bachelor's degree (i.e., at least a Masters) and perform work that requires that degree in a way that is varied and intellectual; or (c) work in a field of artistic endeavor (e.g., actors, screenwriters, artists, etc.); and (d) exercise discretion and independent judgment for one of (a) through (c); and (e) be paid a basic minimum salary.
  4. Computer Professionals. If you spend more than 50% of your time on the analysis or design of software (i.e., highly theoretical aspects) and make over $41.00 an hour, then you qualify.
  5. Outside Salespersons. If you are a salesperson who regularly spends over 50% of your time engaged in sales away from your employer's place of business, then you qualify.
While I have only worked on three employment matters the past seven years, the professional exemption law in California is pretty basic on paper, even if the application of the exemptions can be more nuanced. If I've mangled this at all, I welcome my three labor/employment attorney pals to elaborate in the comments.

In essence, if you get paid for overtime, by definition, you are not a "professional" under California law. I'm sorry if you don't agree with this, but I didn't invent this categorization.

Take your grievances to legislature.

* * * * *

UPDATE: My dearest Kerfuffle, a seasoned labor/employment attorney, has come through. Please note the following correction from her:
Under the Wage Orders (the regs interpreting the Labor Code), the professional exemption includes employees who are "licensed or certified by the State of California and . . . primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting."

So, in CA, I am pretty sure that licensed teachers are professionals exempt from OT, and unlicensed teachers are not. (Under the FLSA I think even unlicensed teachers are, so you were right that CA is different from federal law.)
Now all you teachers can sleep happily tonight, knowing you are indeed "professionals," and I am wrong, wrong, wrong to say that you're not.

Commence smug looks now!


  1. Playing the lawyer card is sometimes a necessary evil.

  2. Wow, I guess I'm not a professional by definition.

    Though it should come as no surprise, judging by my behavior and responsibilities at work :)

  3. Does this mean that under Point #3, some teachers can be considered "professionals" if they have a master's degree? I'm honestly curious since I don't know squat about this area of law.

  4. Winnie, you fall under the second exemption.

    Trisha, no, because technically the job does not "require" that degree.

    You can be a teacher without an M.A., but you can't be a doctor without an M.D.

  5. interesting. i didn't realize i qualified as a "professional" in my last job, but #2 was all me, baby.

  6. whee! i'm not a professional per #3 because despite having sat for a licensure test, our lovely state does not have a practice act for my field. and i don't really giveashit as i'm less liable. for now. :)

  7. I know I'm one of those people you're talking about and I know you didn't write the law, but I do not understand why the State of California recognizes engineers and accountants as "professionals" but not teachers.

    From #3 Learned/Artistic Professionals:
    "(a) be licensed by the State of California in an area such as law, medicine, engineering, accounting, etc. and be working in that field; or (b) have an advanced degree beyond a bachelor's degree (i.e., at least a Masters) and perform work that requires that degree in a way that is varied and intellectual;...(d) exercise discretion and independent judgment for one of (a) through (c); and (e) be paid a basic minimum salary."

    Engineeers do not meet either (a) or (b) of that section. They do not require advanced degrees or further study beyond a Bachelor's degree in order to work. There is no "Engineering License" that I know of, and I've had many friends who were engineers, some who had only a four year degree.

    Teachers have to have training and certification beyond a Bachelor's degree, much like accountants or lawyers, although our training is shorter than that of lawyers, and teachers have to take tests and complete "professional development" hours. I understand that nurses don't even need Associate's Degrees to practice, and they get paid overtime, so they don't meet the state's definition.

    It seems to me that this is just snobbery on the part of whoever wrote that particular part of the law, again descriminating against careers that are traditionally staffed by women.

  8. You're a professional, tater. You don't get paid for overtime.

    People, the simple equation is as follows:

    No overtime = you are a professional.

  9. Wow, considering that we're a country at war with a major election coming up, and that there are millions of people dying from AIDS and famine, you'd think people would have better things to do with their time than to go on the attack over the term "professional." Pretty lame you'd be bombarded with emails on such a trivial issue.

    People are so defensive nowadays. Sheesh. I blame insecurities over lack education. Common sense should rule Dear Wemo Readers! I don't recall you ever saying people aren't hard workers or strong earners just because of their title, though the two tend to go hand in hand.

  10. KZ, if engineers don't fall under the "learned" exemption, it's very likely they fall under the "administrative" exemption, which is very broad and usually the subject of litigation.

    I don't understand your argument about nurses. Nurses get paid overtime. Thus, they are not professionals. The five categories I listed do not get paid overtime. Hence the term "exempt."

    If you would like to read the full text of the Labor Code, I can refer you to it. What I've written here is only a very glossy summary that I've tried to translate into plain English. Details have been spared for the sake of simplicity, but perhaps reading the relevant Code sections in their entirety might change your mind about the purported "discrimination" you are alleging.

    There is none.

  11. Re the nurses comment: I was saying that I understand that because they get paid overtime, they are not considered professionals under the law. I wasn't disagreeing. Actually, it cleared up some things for me.

    By the way, and I'm sure you know, teachers do not get paid overtime.

    It's not about titles or education, and I don't feel I was attacking anyone. I don't really know what sorts of cases require defining the word "professional" I just worry that at some point in the future, or perhaps the past, excluding some jobs from that definition might be bad for people in those jobs, or might result in limited legal protection.

  12. Cases regarding wage and hour issues often involve determinations of professional status.

    Everything boils down to money. These definitions give an employer an excuse not to pay someone overtime.

    It has nothing to do with "protection."

  13. Finally, I've been holding back from saying this because I know you are a teacher, as are many of my friends and even my mother, and because I know people with thin skin will be hurt about it, but the fact remains that teachers (1) don't need an advanced degree and (2) don't work as many hours as the majority of those persons who are considered "professionals" under California law.

  14. It's just funny...I made way less money and had/required way less education when I was a "professional" than I do now.

    Man, I wish I got paid overtime for my non-professional job. I would have made double my salary this past year.

  15. For the record, I was never actually mad at you :) However, after reading your entry, I would say that teachers are {or should be} considered Learned/Artistic Professionals. After all, we do have a credential from the state of California, have an advanced degree beyond a bachelor's degree, exercise independent judgment and, are paid a basic minimum salary. I'll take it up with the state :)

  16. Oh, WeeMo, I just read your response to're luck you're cute :) This teacher debate could go on and on :)

  17. It seems like the definition of professional has raised more controversy than the original, potentially controversial post.

  18. on people I meant. On clothes and when they say chanel they = heaven.

  19. To be technical about it, it's not correct to say that California law sets forth a certain number of categories of "professionals." Rather, California has various categories of "exemptions," pursuant to which employees may be "exempt" from either the minimum wage, the overtime, or both the minimum wage and overtime, requirements of the law.

    Also, there are a couple of other categories of exemptions that were left off the list, like the inside sales exemption and the partial and full exemptions for personal attendants and household domestic workers.

    Additionally, the feds now have a highly-compensated employee exemption to the federal Fair Labor Standards Act. Basically, if you regularly perform at least one of the exempt duties of an executive, administrative or professional employee and earn more than 100k per year, you are exempt from the overtime requirements.

    Interestingly, there is a mini-debate going on within the Labor and Employment Law community over whether part-time lawyers paid by the hour can be covered under the professional exemption (and thus not entitled to the overtime premium of time and a half for all hours over eight in a day or forty in a week.

    Technically, even though they are lawyers, because they are being paid on an hourly basis and not on a salary basis, they fail one of the prongs of the exemption.

    Just my two cents...

    BTW, my wife found the controversial post very interesting, and noted in passing that the concern which some women who are in the workforce today express about the "alarming" decision of professional women to leave the workforce to raise families almost perfectly mirrors the reaction many housewives had back in the 1950's and 1960's to women who decided to enter the professional workforce. In her view, it's ironic that the same women who in the past stood up for a woman's right to self-determination in her life choices now rail against women who make life choices with which they disagree.

    Now, which client can I bill this to...:)

  20. Thanks, my dear Cheeks! Now if Jen weighs in, my labor trio is complete. ;)

  21. Dammit! I didn't want to be a professional. I wanted to whine about how miserable my unprofessional life is so I can try to stay home. ;)


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