FLSA2005-43 — Aviation museum curator and section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

October 24, 2005 FLSA2005-43

Dear
Name*,

This is in response to a request from your office for an opinion on whether the Aviation Museum
Curator position of the
Name* is exempt from the minimum wage and overtime pay requirements of
the Fair Labor Standards Act (FLSA).

The Aviation Museum Curator described in your letter performs the following duties: maintains the
museum’s collection in accordance with museum management principles and practices, develops
new exhibits and coordinates their display, solicits and evaluates additions to the museum’s
collection, develops educational components to present information regarding the exhibits, assists in
fundraising and writing grant proposals, coordinates the maintenance and operation of the museum
building, manages museum special projects such as collecting oral histories, and establishes and
implements a volunteer tour guide program. The Curator works under the direct supervision of the
Aviation Museum Manager. As the museum develops, the curator will supervise one full-time
assistant and 10 to 12 volunteers who will assist the public and conduct tours.

Section 13(a)(1) of the FLSA provides a complete minimum wage and overtime pay exemption for
any employee employed in a bona fide executive, administrative, or professional capacity as those
terms are defined under 29 C.F.R. Part 541 (copy enclosed). We evaluated the Curator position
under the requirements of the “administrative” exemption. The qualification requirements for the
administrative exemption are located at 29 C.F.R. § 541.200.

“The term ‘employee employed in a bona fide administrative capacity’ in section 13(a)(1) of the Act
shall mean any employee:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week...;
(2) Whose primary duty is the performance of office or non-manual work directly related to the
management or general business operations of the employer or the employer’s customers;
and
(3) Whose primary duty includes the exercise of discretion and independent judgment with
respect to matters of significance.”

29 C.F.R. § 541.200(a)(1),(2), and (3).

Because no salary information regarding this position has been provided, we assume, for the
purpose of this analysis, that the Museum Curator is paid at least $455 per week on a salary or fee
basis. Please note that this minimum salary amount increased with the adoption of the final
regulations, Part 541, effective August 23, 2004. 69 Fed. Reg. 22,122 (April 23, 2004). If the
Museum Curator is not paid on a salary or fee basis at least this amount, the exemption would not
apply. The regulations regarding this compensation requirement are located at sections 541.602-
541.605.

To satisfy the second element of this test, the primary duty of the Museum Curator must be the
performance of office or non-manual work directly related to the management or general business
operations of the employer. The requirement refers to the type of work performed by the employee.
“To meet this requirement, an employee must perform work directly related to assisting with the
running or servicing of the business, as distinguished, for example, from working on a manufacturing
production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a).

The duties of the Museum Curator as described in your letter are non-manual. Also, many of the
Museum Curator’s duties as described are directly related to the management or general business
operations of the Museum. Section 541.201(b) lists examples of duties which are generally
Page 1 of 3

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

considered directly related to management or general business operations, including but not limited
to: “tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing;
procurement; advertising; marketing; research ... .” 29 C.F.R. § 541.201(b). The Curator performs
many of these functions. The Museum Curator maintains and controls the quality of the exhibits
according to museum management principles. The Curator is responsible for evaluating and
soliciting additions to the collections, which is similar to purchasing. In the finance and budget arena,
this position is involved, in part, with fund-raising activities and the procurement of grant money. In
research, marketing, and public relations, the employee does research for the preparation of
educational materials to present information regarding the exhibits to the public and is responsible
for establishing and implementing a volunteer tour guide program and managing special projects,
such as collecting oral histories.

To satisfy the third and final element of this test for exemption, the Museum Curator must exercise
“discretion and independent judgment with respect to matters of significance.” Factors to be
considered when determining whether an employee exercises discretion and independent judgment
with respect to matters of significance include:

1) whether the employee has authority to formulate, affect, interpret, or implement
management policies or operating practices;
2) whether the employee carries out major assignments in conducting the operations of the
business;
3) whether the employee performs work that affects the business operations to a substantial
degree, even if the employee’s assignments are related to operation of a particular
segment of the business;
4) whether the employee has authority to commit the employer in matters that have
significant financial impact;
5) whether the employee has authority to waive or deviate from established policies and
procedures without prior approval;
6) whether the employee has authority to negotiate and bind the company on significant
matters;
7) whether the employee provides consultation or expert advice to management;
8) whether the employee is involved in planning long- or short-term business objectives;
9) whether the employee investigates and resolves matters of significance on behalf of
management; and
10) whether the employee represents the company in handling complaints, arbitrating disputes
or resolving grievances.

29 C.F.R. § 541.202(b).

The duties of the Museum Curator as you describe them include a number of the factors listed in the
regulation. As the preamble to the final rule explains, federal courts generally find that employees
who meet at least two or three of these factors are exercising discretion and independent judgment,
although a case-by-case analysis is required. 69 Fed. Reg. at 22,143 (copy enclosed). The Museum
Curator formulates operating practices by establishing and implementing a volunteer tour guide
program and by developing education materials to be presented by the volunteer tour guides. The
Museum Curator implements operating practices by developing the changing exhibits. Additionally,
writing grant proposals involves the Museum Curator in the long-term or short-term business
objectives of the Museum. These factors indicate that the Museum Curator exercises “discretion and
independent judgment with respect to matters of significance” directly related to managing the
general business operations of the museum.

Based on the information you have provided, when we examine the job duties viewed as a whole, it
appears to us that the primary duty of the Museum Curator position qualifies this position for the
administrative exemption.

Page 2 of 3

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented that
this opinion is not sought by a party to pending private litigation concerning the issue addressed
herein. You have also represented that this opinion is not sought in connection with an investigation
or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.
This opinion is issued as an official ruling of the Wage and Hour Division for purposes of the Portal-
to-Portal Act, 29 U.S.C. § 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of Lancaster,
913 F.2d 498, 507 (8th Cir. 1990).

We trust that the above is responsive to your inquiry.

Sincerely,

Alfred B. Robinson, Jr.
Deputy Administrator

Enclosures:
29 C.F.R. Part 541
69 Fed. Reg. 22,143

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
Page 3 of 3