FLSA2007-5 — Radiology technologists and section 13(a)(1)

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

FLSA2007-5

February 1, 2007

Dear Name*:

This is in response to your letter requesting an opinion regarding whether radiology
technologists (RTs) qualify for the professional exemption under section 13(a)(1) of the Fair
Labor Standards Act (FLSA) and 29 C.F.R. Part 541.
1
It is our opinion that radiology
technologists are not exempt from the minimum wage and overtime requirements of the FLSA.

The RTs review physicians’ orders for patient examinations and ensure that the examining
room is properly prepared for the procedure. They visit patients to determine their tolerance to
the examination and positioning, prepare patient information cards that are included on the film
for identification, and position the patients to assure that the radiologist can see and access the
proper area for the imaging procedure. RTs administer contrast and other chemicals orally or
intravenously. They set technical factors on equipment, such as penetration and length of the
imaging power; check radiation and imaging power factors for safety to the patient,
technologist, and equipment; and operate the equipment for radiation and other imaging power
exposure. RTs take the film to the darkroom for automatic processing and evaluate the
adequacy of the film for reading by the radiologist. As needed, the RTs take additional images.
They may also assist the radiologist in understanding particular cases and images taken.

Following the procedures, the RTs return patients to their proper area; clean tables and change
linens; clean cassettes, aprons, gloves, and wheelchairs; check cassettes for contact and
leakage, and aprons and gloves for leakage; and clean the film processor as required. They
ensure that proper notations are made in the patients’ records, and participate in maintaining
departmental files, coordinating and scheduling of patients, and maintaining department
inventories. The RTs maintain records of use according to state and federal regulations. They
perform daily instrument calibration procedures on all instruments, make minor repairs to
equipment, and report any major equipment problems to the department head. RTs carry out
all of their duties without the need for constant supervision.

The RT position requires successful completion of a two-to-three-year radiology technology
program accredited by the Joint Review Committee on Education in Radiologic Technology or
some other manner of accreditation acceptable to the American Registry of Radiologic
Technologists (ARRT). The RTs must pass an ARRT examination for registration. To renew
the ARRT registration, an RT must meet certain continuing education requirements every two
years.
2

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at
www.wagehour.dol.gov
2
According to ARRT, there are three options for meeting the continuing education requirements: “(1) earn 24 CE
credits which meet the criteria set forth by the ARRT; or (2) pass a primary examination in a discipline not
previously passed and for which the individual is eligible; or (3) pass one of the post-primary examinations not

Section 13(a)(1) of the FLSA exempts from its minimum wage and overtime pay provisions
“any employee employed in a bona fide . . . professional capacity.” The exemption is
determined not by occupational title or job classification, but rather by the duties and salary of
the individual employee involved. See 29 C.F.R. § 541.2.

As discussed in 29 C.F.R. § 541.300, the term “employee employed in a bona fide professional
capacity” in section 13(a)(1) of the FLSA includes “any employee:”

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week . . . exclusive
of board, lodging, or other facilities; and

(2) Whose primary duty is the performance of work . . . [r]equiring knowledge of an advanced
type in a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction.

29 C.F.R. § 541.300.

Your inquiry does not include any information concerning the pay system for the RTs. Absent
information to the contrary, we assume for the purposes of this letter that the first requirement
is met and that the RTs are compensated on a salary or fee basis at a rate of not less than $455
per week, exclusive of board, lodging, or other facilities. For more information on the salary
basis requirement, see 29 C.F.R. § 541.600.

The primary duty test under the learned professional exemption in § 541.301(a) includes three
elements: (1) The employee must perform work requiring advanced knowledge; (2) the
advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge
must be customarily acquired by a prolonged course of specialized intellectual instruction. The
phrase “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.” 29 C.F.R. § 541.301(b).

We do not believe that the RT position meets the primary duty requirements of 29 C.F.R.
§§ 541.300-.301. First, the RT’s primary duty does not appear to require “knowledge of an
advanced type in a field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction.” 29 C.F.R. § 541.300(a)(2)(i). “The phrase ‘customarily
acquired by a prolonged course of specialized intellectual instruction’ restricts the exemption to
professions where specialized academic training is a standard prerequisite for entrance into the
profession. The best prima facie evidence that an employee meets this requirement is
possession of the appropriate academic degree.” 29 C.F.R. § 541.301(d). As the preamble to
the Department’s 2004 revisions to the Part 541 final rule explained, jobs that “require only a
four-year college degree in any field or a two-year degree as a standard prerequisite for

previously passed and for which the individual is eligible.” See ARRT’s Continuing Education Requirements for
Renewal of Registration at www.arrt.org/education/cereq.pdf.

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entrance into the field . . . do not qualify for the learned professional exemption.” 69 Fed. Reg.
22,122, 22,150 (Apr. 23, 2004); Wage and Hour Opinion Letters FLSA2005-35 (Oct. 3, 2005)
and Jan. 17, 1985 (copy enclosed). The requirement that an RT complete a two- to three-year
radiology technology program accredited by the Joint Review Committee on Education in
Radiologic Technology (or some other manner of accreditation acceptable to the ARRT), along
with an ARRT examination for registration, does not appear to meet this regulatory standard.

Moreover, the regulations identify specific academic requirements for exemption of registered
or certified medical technologists, and the RTs in your inquiry do not seem to meet these
requirements:

Registered or certified medical technologists who have successfully completed three
academic years of pre-professional study in an accredited college or university plus a
fourth year of professional course work in a school of medical technology approved by
the Council of Medical Education of the American Medical Association generally meet
the duties requirements for the learned professional exemption.

29 C.F.R. § 541.301(e)(1).

The work of an RT requires two to three years of study in a program meeting certain
requirements, rather than three academic years of pre-professional study in an accredited
college or university plus a fourth year of professional course work in a school of medical
technology approved by the Council of Medical Education. The existence of a mandatory,
accredited certification program, as is the case for the RTs, does not override the regulatory
requirement for a prolonged course of specialized intellectual instruction for entry into the
field. As further explained in the preamble to the final rule:

[a]ccredited curriculums and certification programs are relevant to determining exempt
learned professional status to the extent they provide evidence that a prolonged course
of specialized intellectual instruction has become a standard prerequisite for entrance
into the occupation as required under section 541.301. Neither the identity of the
certifying organization nor the mere fact that certification is required is determinative, if
certification does not involve a prolonged course of specialized intellectual instruction.

69 Fed. Reg. 22,157.

Second, the RTs’ work involves the use of advanced skills and procedures that are vitally
important to the professional work of the radiologist who analyzes and interprets the images.
The RTs’ work, however, does not appear to be “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.” 29 C.F.R. § 541.301(b). The procedural work performed by the RTs is highly
skilled and requires significant training, but seems to be more in the character of routine
mental, manual, mechanical and physical processes than intellectual work requiring the
consistent exercise of discretion and judgment. See 29 C.F.R. § 541.301(d). The “learned
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professional” activity in this area appears to be the practice of medicine involved in the analysis
and interpretation of the images developed by the radiologist.

For these reasons, it is our opinion that these employees do not qualify for the “learned
professional” exemption, and they must be paid in accordance with the minimum wage and
overtime pay provisions of the FLSA.

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.

We trust that the above information is responsive to your inquiry.

Sincerely,

Paul DeCamp
Administrator

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