The highly technical requirements of the FLSA’s learned professional exemption often result in findings that employees traditionally considered to be professionals are non-exempt. In order to satisfy the exemption, the employee must utilize advance knowledge that is “customarily acquired through prolonged academic instruction” when performing their primary duties In a new decision highlighting this analysis (as well as its deviation from the “common sense” understanding of a learned professional), Judge Michael Telesca of the Western District of New York applied the exemption on summary judgment to a funeral director. Rowe v. Olthof Funeral Home, Inc., 2011 U.S. Dist. LEXIS 118182 (W.D.N.Y. Oct. 12, 2011).
Plaintiff Rowe served as a licensed funeral director for defendant for four years. Prior to becoming so employed, Plaintiff completed a one year residency with defendant in conjunction with his obtaining his license from New York State. His primary duties included “removing bodies of deceased persons from the locations of their deaths, transporting bodies to [defendant’s premises], embalming bodies, dressing embalmed bodies and placing them in caskets, and cremating bodies.” The parties dispute hinged upon interpretation of a DOL regulation stating that “licensed funeral directors and embalmers who are licensed by and working in a state that requires successful completion of four academic years of pre-professional and professional study, including graduation from a college of mortuary science…generally meet the duties requirements for the learned professional exemption.” 29 C.F.R. § 541.301(e)(9). Plaintiff contended that “because the State of New York requires only an Associates’ degree to become a licensed funeral director, funeral directors in New York are not exempt [under this regulation].” The court rejected a formulaic application of the “four year” guideline contained in this regulation, instead observing that the proper determination of exempt or non-exempt status turned upon “the duties performed by plaintiff in the course of his employment, and [a determination of] whether the duties performed are those of a learned professional.” Id. at *10. The court then ruled that plaintiff’s primary duties, as discussed above, required the use of the advance knowledge Rowe acquired through his academic background and licensing process.
Rowe represents a win for employers particularly in the funeral home community, as the court rejected a draconian reading of the exemption requirement as set forth in the DOL regulations. Employers applying the learned professional exemption must continue to ensure that advanced knowledge in a field of science or learning is a prerequisite to perform the work, not simply a preference. The absence of a specific job-related degree can doom the exemption argument.