Surveying the Capitol: The "Learned Professional" Exemption
Professional Surveyor Magazine - May 2009
Recently, I learned about a situation where a land surveyor was being audited under the Federal Labor Standards Act (FLSA) and was told, in no uncertain terms by the Department of Labor auditor, that he did not qualify for the "learned professional" exemption for payment of overtime wages for his surveyor employees. This led me to do some research on the issue to see what exactly the federal rules say as far as whether or not surveyors qualify for the "learned professional" exemption. The answer is - the rules aren't clear and there is no definitive answer. I think, however, a case can be made that surveyors qualify for the "learned professional" exemption.
The "learned professional" exemption allows an exemption from minimum wage and overtime pay provided under the FLSA. Section 13(a)(1) of the FLSA. It provides an exemption from both minimum wage and overtime pay for those employed as bona fide executive, administrative, professional, and outside sales employees.
To qualify for a "learned professional" employee exemption, all of the following tests must be passed:
- the employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
- the employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominately intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
- the advanced knowledge must be in a field of science or learning; and
- the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
Under these tests, it looks as if surveyors meet the exemption. Most meet the salary test easily. Any surveyor will tell you that their work requires "advanced knowledge" and is "intellectual in character" and requires "consistent exercise of discretion and judgment." The advanced knowledge that a surveyor possesses is certainly in a "field of science or learning" and is often acquired by specialized instruction. But, as is often the case with the federal government, the devil is in the details.
According to the FLSA, the term "primary duty" (prong two of the test) means the principle, main, major, or most important duty that an employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. This seems to suggest that some surveyors may clear this hurdle and others may not, depending on what their primary duties are.
"Work requiring advanced knowledge" is defined by the FLSA as work that is predominantly intellectual in character and that includes work requiring the consistent exercise of discretion and judgment. Professional work is distinguished from work involving routine mental, manual, mechanical, or physical work. A professional employee generally uses the advanced knowledge to analyze, interpret, or make deductions from various facts or circumstances. The FLSA holds that advanced knowledge cannot be attained at the high-school level. There can be very little argument that a vast majority of surveyors spend their day analyzing and interpreting data and/or maps and making deductions from those facts.
The FLSA distinguishes a number of fields of science or learning as examples of prong three of the test. Those fields of science or learning are: law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, pharmacy, various types of physical, chemical, and biological sciences, and other occupations that have a recognized professional status. These fields of science and learning are distinguishable from the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but not in a field of science or learning.
Although surveying is not directly named in the list of fields of science or learning cited by the FLSA, an argument can be made that surveying should be included because architecture and engineering are distinctly included. Under the Federal Acquisition Regulations (FAR) subpart 36, surveying (as well as mapping) is included as a professional service of an architectural or engineering nature. This seems to suggest that the federal government feels that a certain degree of knowledge and/or education attained by those in the architecture and engineering fields is necessary to perform surveying and mapping services.
According to the FLSA, the best evidence that an employee meets the final prong of the test (that the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction) is having an appropriate academic degree. However, inclusion of the word "customarily" in the requirement suggests that the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.
While attaining a four-year degree is not a requirement to become a licensed surveyor in many states, that fact alone shouldn't prevent surveyors from qualifying for the "learned professional" exemption. There are many professions where a person with no experience or instruction can succeed, but surveying is not one of them. Most surveyors easily meet the four-prong test for the "learned professional" exemption; we should make that distinction official with the federal government.
What do you think? Feel free to comment on this article at the Professional Surveyor Magazine website's forum. I will be checking in to join the conversation.
About the Author
Laurence SocciLaurence Socci is the chief executive manager and senior lobbyist of The CLA Group, LLC, a government consulting, lobbying, and advocacy firm in Washington, D.C., specializing in representing businesses and associations. He is also the government affairs consultant for the American Congress on Surveying and Mapping (ACSM).
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