FLSA2006-26 — Respiratory therapists and section 13(a)(1)

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

FLSA2006-26

July 24, 2006

Dear Name*:

This is in response to your letter and attachments requesting an opinion on the application of
section 13(a)(1) of the Fair Labor Standards Act (FLSA) to certain employees of your
subsidiary, the Hospital. We regret the delay in responding to your request. You ask for
confirmation that the Hospital’s respiratory therapists (RTs) who are paid on a salary basis that
meets the regulatory standard are appropriately classified as exempt professionals under the
FLSA as the term is defined in 29 C.F.R. Part 541(copy enclosed).

To be employed as an RT at the Hospital, each RT must possess an active state license in
respiratory therapy. To obtain such a license, an individual must first obtain the credential of
Certified Respiratory Therapist by passing the National Board for Respiratory Care
Certification Examination for Entry Level Respiratory Therapists. To sit for this examination,
the individual must complete an accredited respiratory therapy educational program.
Accredited respiratory care educational programs include two to four years of specialized
instruction, leading to an Associate’s Degree or a Bachelor’s Degree. To be accredited, a
respiratory therapy educational program must include in its curriculum “modules and courses
of instruction in general studies, basic science, clinical science and respiratory care
accompanied or followed by a series of structured laboratory and clinical experiences.” Twelve
percent of accredited respiratory care educational programs in the country are at the
baccalaureate level.

You indicated that the Hospital requires greater levels of academic and professional
achievement from its RTs than the state’s licensure or Respiratory Care Departments at other
hospitals. Your Hospital’s RTs must have at least an Associate’s Degree in Applied Science,
but a Bachelor’s Degree is preferred and the Hospital targets its hiring at this higher level. At
the time of your request, however, only 20 of 68 of the Hospital’s RTs possessed Bachelor’s
Degrees in respiratory therapy. Of the remaining 48 Associate’s Degree level-trained RTs, 15
also held Bachelor’s Degrees in some other, complementary field. You also stated that each
RT must be certified in both Basic and Advanced Cardiac Life Support, and that the hospital
requires RTs to continue studying in their field throughout their tenure at the Hospital through
participation in continuing education programming offered both within and outside of the
Hospital’s Respiratory Care Department.

As you know, section 13(a)(1) (copy enclosed) of the FLSA provides an exemption from both
minimum wage and overtime pay for employees employed as bona fide executive,
administrative, professional and outside sales employees, and certain employees in
computer-related occupations, as these terms are defined in the implementing regulations,
29 C.F.R. Part 541. Your particular request concerns the applicability of the “learned
professional” exemption to the Hospital’s RT employees. Please note that revisions to 29
C.F.R. Part 541 were published as a final rule in the Federal Register on April 23, 2004 and
became effective on August 23, 2004. See Defining and Delimiting the Exemption for

Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg.
22,122 (April 23, 2004) (codified at 29 C.F.R. Part 541 on August 23, 2004). Our response is
applicable under both the new and prior versions of the regulations, as there were no
substantive changes in the long-standing educational requirements for the learned professional
exemption. See 69 Fed. Reg. 22,149 (copy of 69 Fed. Reg. 22,148-22,157 enclosed). This
response is consistent with WH Opinion Letters January 10, 1986 and April 2, 1981 (copies
enclosed).

Under section 541.300 of the new regulations, the “learned professional” exemption applies to
any employee: (1) compensated on a salary or fee basis at a rate of not less than $455 per week,
and (2) whose primary duty is the performance of work requiring knowledge of an advanced
type in a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction. As explained in section 541.301(b), 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.” Moreover, the
requirement that the advanced knowledge be “customarily acquired by a prolonged course of
specialized intellectual instruction” restricts the learned professional exemption “to professions
where prolonged specialized academic training is a standard prerequisite for entrance into the
profession,” and 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). However, the
learned professional exemption is not available for occupations that could customarily be
performed with knowledge acquired by an academic degree in any field, with knowledge
acquired through an apprenticeship, or with training in the performance of routine mental,
manual, mechanical, or physical processes. The learned professional exemption also does not
apply to occupations in which most employees have acquired their skill by experience rather
than by advanced, specialized intellectual instruction. Id.

As further explained in the preamble accompanying the final rule, an individual may work in “a
field of science or learning” but still not meet the requirements for the learned professional
exemption because the occupation does not require knowledge “of an advanced type ...
customarily acquired by a prolonged course of specialized intellectual instruction.” See 69 Fed.
Reg. 22,149. The proper focus of the inquiry is upon whether all required elements have been
satisfied for the particular occupation, not upon any job title or “status” that an individual
employee within an occupation might have or on an individual employer’s specified hiring
preferences. Id. Rather, only occupations that customarily require an advanced specialized
degree are considered learned professional fields under both the old and new versions of the
regulations. Thus, the learned professional exemption is not available for the respiratory
therapist because that occupation does not require knowledge of an advanced type that is
customarily acquired by a prolonged course of specialized intellectual instruction.

Some jobs require only a four-year degree in any field or a two-year degree as a standard
prerequisite for entrance into the particular field. Other jobs may require only completion of
some other short course of specialized training. The revised final regulations at section
541.301(d) make it clear that such occupations would not qualify for the learned professional
exemption. See 69 Fed. Reg. 22,150. While certain occupations in the health care field are
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expressly recognized as meeting the duties requirements for the learned professional
exemption, many other health care employees generally do not qualify as exempt learned
professionals, regardless of work experience and training, because possession of a specialized
advanced academic degree is not a standard prerequisite for entry into such occupations. See
29 C.F.R. § 541.301(e). These provisions of the regulations are consistent with the prior
regulations and long-standing policies of the Wage and Hour Division. See 69 Fed. Reg.
22,156.

The regulations do recognize, however, in section 541.301(f), that the areas in which the
learned professional exemption applies are expanding, and that when an advanced specialized
degree has become a standard prerequisite for a particular occupation, that occupation may
have acquired the characteristics of a learned profession. Furthermore, the regulations note that
accrediting and certifying organizations similar to those listed in the regulations may develop
similar specialized curriculums and certification programs. However, as further explained in
the preamble to the final regulations, “[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.” 69 Fed. Reg.
22,157. Neither the identity of the certifying organization nor the mere fact that certification is
required is determinative if certification does not, in fact, involve a prolonged course of
specialized intellectual instruction. By way of example, certified physician assistants are
considered to meet the duties requirement for the learned professional exemption because
certification requires four years of specialized post-secondary school instruction. Id.

Based on your description of the requirements for work as an RT, the work of the Hospital’s
RTs can be performed by an individual who possesses the minimum qualifications of a licensed
and certified respiratory therapist following completion of an accredited respiratory care
educational program that involves only two years of specialized instruction leading to an
Associate’s Degree. While your Hospital’s RTs may be highly skilled as a result of their
training, this level of intellectual instruction and academic training does not qualify the RT
occupation as one requiring advanced knowledge “customarily acquired by a prolonged course
of specialized intellectual instruction.” Moreover, 12% of accredited programs in the country
are at the baccalaureate level, thus indicating that four years of specialized post-secondary
school instruction is not a standard prerequisite for entry into the field. Therefore, it is our
opinion that the RT positions in question do not qualify for the learned professional exemption.

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.

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

Sincerely,

Alfred B. Robinson, Jr.,
Acting 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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