Just when you thought you had enough information about the criteria for exempt employees in Washington, now there are new definitions for professional employees and an expansion of the exemption to expressly include computer system analysts, computer programmers, software engineers, or other similarly skilled workers. The new rule also makes clear that advanced knowledge cannot be attained at the high school level.
As before, the duties test for professional employees still requires the employee’s primary duty to consist of work: (i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (ii) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. And, the employee must be compensated on a salary or fee basis.
Now, the rule clarifies that exempt professionals include any employee who is:
- The holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof; or
- The holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of the profession. Employees engaged in internship or resident programs, whether or not licensed to practice prior to commencement of the program, qualify as exempt professionals if they enter such internship or resident programs after the earning of the appropriate degree required for the general practice of their profession; and
- Any employee with a primary duty of teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.
And, with respect to medicine, the new rule explains that the exemption applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term “physicians” includes medical doctors including general practitioners and specialists, osteopathic physicians (doctors of osteopathy), podiatrists, dentists (doctors of dental medicine), and optometrists (doctors of optometry or bachelors of science in optometry).
The new rule also provides expanded definitions:
- “Customarily acquired by a prolonged course of specialized intellectual instruction” is defined to restrict the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession, and is also available to employees who attained substantially the same advanced knowledge through a combination of work experience and intellectual instruction.
- “Field of science or learning” means the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status.
- “Recognized field of artistic or creative endeavor” includes such fields as music, writing, acting, and the graphic arts.
- “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. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret, or make deductions from varying facts or circumstances.
Finally, the rule expands the definition of exempt professionals to include employees who are employed as computer system analysts, computer programmers, software engineers, or other similarly skilled workers. For these employees, their primary duty must consist of one of the following: (i) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, soft-ware, or system functional specifications; (ii) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (iii) The design, documentation, testing, creation or modification of computer programs related to machine operation systems; or (iv) A combination of the aforementioned duties, the performance of which requires the same level of skills.
Washington employers should analyze the classification of exempt employees and consider whether employees need to be re-classified in light of the new duties tests and salary requirements.