FLSA2009-9 * — Helicopter pilots and section 13(a)(1) Please see Opinion Letter FLSA2018-3.

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

FLSA2018-3
January 5, 2018
Dear Name*:
This letter responds to your request that the Wage and Hour Division (“WHD”) reissue Opinion
Letter FLSA2009-9. On January 14, 2009, then-Acting WHD Administrator Alexander J.
Passantino signed the opinion letter as an official statement of WHD policy. On March 2, 2009,
however, WHD withdrew the opinion letter “for further consideration” and stated that it would
“provide a further response in the near future.”
We have further analyzed Opinion Letter FLSA2009-9. From today forward, this letter, which is
designated FLSA2018-3 and reproduces below the verbatim text of Opinion Letter FLSA2009-9,
is an official statement of WHD policy and an official ruling for purposes of the Portal-to-Portal
Act, 29 U.S.C. § 259.
I thank you for your inquiry.

Bryan L. Jarrett
Acting Administrator

Dear Name*:
This is in response to your request for an opinion regarding whether civilian helicopter pilots
employed by the Division of State Police qualify for the executive, administrative, or
professional exemptions under section 13(a)(1) of the Fair Labor Standards Act (FLSA).
1
It is
our opinion that the civilian helicopter pilots are not exempt.
The helicopter pilots are civilian employees classified as “management/confidential,” who are
prohibited under state law from bargaining collectively. The helicopter pilots do not receive
overtime pay, although they perform the same duties as the state police helicopter pilots who

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.

receive overtime under a collective bargaining agreement. In a conversation with a member of
the Wage and Hour Division (WHD) staff, you stated that the civilian helicopter pilots typically
transport state executives and perform medevacs, evacuations, rescues, searches, and forest fire
suppression. The civilian helicopter pilots possess Federal Aviation Administration (FAA)
certification greater than required for the performance of such duties. You believe that the
civilian helicopter pilots are not exempt under the FLSA as they do not satisfy the primary duty
test.
Section 13(a)(1) provides a minimum wage and overtime pay exemption for any employee
employed in a bona fide executive, administrative, or professional capacity, as defined in 29
C.F.R. Part 541. An employee may qualify for exemption if the duties and salary tests are met.
The term “employee employed in a bona fide executive capacity” means “any employee”:
(1) Compensated on a salary basis at a rate of not less than $455 per week;
(2) Whose primary duty is management of the enterprise in which the employee is employed
or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other employees; and
(4) Who has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or any other change of
status of other employees are given particular weight.
29 C.F.R. § 541.100. The helicopter pilots you describe do not qualify as exempt executive
employees because their primary duty is not managing the department or subdivision in which
they are employed. See 29 C.F.R. § 541.100(a)(2). Rather, their primary duty is piloting
helicopters. Furthermore, there is no indication that the pilots regularly supervise two or more
full-time employees or have the authority to hire or fire other employees. See 29 C.F.R. §
514.100(a)(3), (4).
(1) The term “employee employed in a bona fide administrative capacity” means “any
employee”:
(2) Compensated on a salary or fee basis at a rate of not less than $455 per week;
(3) 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
Whose primary duty includes the exercise of discretion and independent judgment with respect
to matters of significance.
29 C.F.R. § 541.200. The helicopter pilots you describe are not exempt administrative
employees because their primary duty is piloting a helicopter, which does not qualify as “office
or non-manual” work. See 29 C.F.R. § 541.200(a)(2). Moreover, the helicopter pilots’ primary

duties are not directly related to the management or general business operations of their
employer or their employer’s customers. See 29 C.F.R. § 541.201(a).
The term “employee employed in a bona fide professional capacity” means “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 work: (i) Requiring knowledge of an advanced
type in a field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction; or (ii) Requiring invention, imagination, originality or
talent in a recognized field of artistic or creative endeavor.
29 C.F.R. § 541.300.
The primary duty test under the learned professional exemption requires that:
(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.
29 C.F.R. § 541.301(a). 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). The phrase “customarily
acquired by a prolonged course of specialized intellectual instruction” restricts the learned
professional exemption “to professions where specialized academic training is a standard
prerequisite for entrance into the profession” rather than a general academic degree, an
apprenticeship, or “training in the performance of routine mental, manual, mechanical or
physical processes.” 29 C.F.R. § 541.301(d). The Preamble to the 2004 revised Part 541
regulations maintains “that aviation is not a ‘field of science or learning,’ and that the knowledge
required to be a pilot is not ‘customarily acquired by a prolonged course of specialized
intellectual instruction.’” 69 Fed. Reg. 22,122, 22,156 (Apr. 23, 2004).
WHD’s longstanding position is that pilots do not qualify for the professional exemption under
section 13(a)(1). See Wage and Hour Opinion Letter January 20, 1975 (copy enclosed). The
primary duty of pilots does not “[r]equir[e] 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); see also 69 Fed. Reg. at 22,156. “While it is true that the duties of
many helicopter pilots and copilots require considerable knowledge of navigation, meteorology,
engineering and flight theory, and they must pass stringent examinations given by Federal
Aviation Administration, it is still the experience in actual flight which is the most important
element in qualifying as a pilot or copilot.” Wage and Hour Opinion Letter January 20, 1975.
Therefore, because the helicopter pilots do not satisfy the duties requirement under the
regulations, they are not exempt professional employees under the Act.

WHD, however, takes a position of non-enforcement with regard to pilots and copilots of
airplanes and rotorcraft who hold an FAA Airline Transport Certificate or Commercial
Certificate, and who receive compensation on a salary or fee basis at a rate of at least $455 per
week, and who are engaged in the following activities:
(1) Flying of aircraft as business or company pilots;
(2) Aerial mineral exploration;
(3) Aerial mapping and photography;
(4) Aerial forest fire protection;
(5) Aerial meteorological research;
(6) Test flights of aircraft in connection with engineering, production, or sale;
(7) Aerial logging, fire suppression, forest fertilizing, forest seeding, forest spraying, and
related activities involving precision flying over mountainous forest areas;
(8) Flying activities in connection with transmission tower construction, transmission line
construction, transportation of completed structures with precision setting of footings,
concrete pouring; or
(9) Aerial construction of sections of oil drilling rigs and pipe-lines, and ski-lift and fire
lookout constructions.
See Wage and Hour Division Field Operations Handbook § 52L01; Wage and Hour Opinion
Letters February 7, 1992, September 2, 1975, January 20, 1975, and May 25, 1971 (copies
enclosed).
This non-enforcement position does not apply to airplane and helicopter pilots engaged in
agricultural crop-dusting operations. This policy also does not relieve an employer from
compliance with the minimum wage and overtime pay standards for support and maintenance
personnel covered by the FLSA. In addition, this non-enforcement position does not apply to
employees, including pilots and copilots, subject to the provisions of the McNamara-O’Hara
Service Contract Act, the Davis-Bacon Act, and the Contract Work Hours and Safety Standards
Act, nor relieve any employer from any obligation incurred under a collective bargaining
agreement or any liability incurred in a private suit under section 16(b) 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 this letter is responsive to your inquiry.
Sincerely,

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