Disputes regarding the application of the FLSA’s “learned” professional exemption can arise where many – but not all or even “most” – holders of a given position possess specific or substantially-job related academic credentials, but others do not. This is so due to some courts’ narrow interpretation of the learned professional exemption’s requirement that the position require advanced knowledge customarily acquired by a “prolonged course of “specialized intellectual instruction.” With the exception of a few universally-acknowledged professions such as doctors, lawyers and accountants (an industry which itself has been subject to challenge), litigation often centers on whether the requirements for an employer’s specific job are customarily based on academic instruction, or work experience. One such position is that of social worker. Recently, the Ninth Circuit, reversing the lower court’s grant of summary judgment, held that social workers employed by the State of Washington did not satisfy the exemption’s requirements. Solis v. Washington, 2011 U.S. App. LEXIS 18668 (9th Cir. Sept. 9, 2011).
Washington concerned a challenge to the state Department of Social and Health Services’ (DSHS) classification of its social workers as exempt. The district court agreed with DSHS’ position that the academic credentials of its social workers – who were required to hold a “[b]achelor’s degree or higher in social services, human services, behavioral sciences, or an allied field," – were sufficiently specialized and related to their social work to establish the credential and academic instruction as a prerequisite to hold the job of social worker. In the district court’s view, the DSHS requirement that social workers have eighteen months’ social work field experience, along with the imposition of mandatory continuing education requirements, “weighed in favor of a finding of specialized training” and thus exempt status.
Reversing, the Ninth Circuit analyzed Department of Labor opinion letters concerning related positions and observed that “the ‘learned professional’ exemption applies to positions that require ‘a prolonged course of specialized intellectual instruction,’ not positions that draw from many varied fields. While particular coursework in each of the acceptable fields may be related to social work, DSHS admits that it does not examine an applicant’s coursework once it determines that the applicant’s degree is within one of those fields.” Id. at * 21 (emphasis in original). Because individuals with diverse academic training could hold the position, based on their professional experience, the Court reasoned that no specialized academic instruction could possibly be a prerequisite for the job. In the Circuit Court’s view, DSHS’ 18-month on-the-job training requirement further militated against exempt status because DOL regulations “state clearly that the exemption does not apply to ‘occupations in which most employees have acquired their skill by experience.’”
This narrow application of the learned professional exemption creates a dilemma for employers: namely, hire the best candidates to perform a given position, regardless of the source of their superior qualifications, or limit employees hired in job titles classified under the learned professional exemption exclusively to those holding specific narrow degree prerequisites. This concern is underscored in certain professions such as social work by the limited monies provided by funding entities to compensate employees. Absent such a “hard line stance” with respect to this formal requirement, or a very academic, lengthy training program, employers are exposed to a risk of challenge of such a classification.