FLSA2008-17 — Certified Occupational Therapist Assistants and section 13(a)(1)

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

FLSA2008-17

December 19, 2008

Dear Name*:

This is in response to your request for an opinion regarding whether Certified
Occupational Therapist Assistants (COTAs) employed by the school district qualify as
exempt professional employees under section 13(a)(1) of the Fair Labor Standards Act
(FLSA).
1
It is our opinion that COTAs do not qualify as exempt professionals.

The COTAs are currently classified as nonexempt, paraprofessional employees. You
state that the COTAs are requesting to be reclassified as professional employees under
section 13(a)(1). The primary duty of a COTA is assisting occupational therapists in
providing therapeutic educational programs for students. According to the school
district’s COTA job description, the only educational requirement is that which is
sufficient to obtain certification by the state Board of Occupational Therapy Examiners.
One of the prerequisites for certification by the state is the completion of “at least 60
academic semester credits or the equivalent from an accredited institution of higher
education.” Tex. Occ. Code Ann. § 453.203(a)(2)(B).

Section 13(a)(1) of the FLSA exempts from the Act’s minimum wage and overtime pay
provisions, “any employee employed in a bona fide . . . professional capacity” as defined
in 29 C.F.R. part 541. 29 U.S.C. § 213(a)(1). The term “employee employed in a bona
fide . . . professional capacity” in section 13(a)(1) of the FLSA means “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(a).

The salary information provided indicates that the COTAs are compensated more than
$455 per week as required by
29 C.F.R. § 541.600.
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
We assume that the salary basis requirements under 29 C.F.R. § 541.602 are met for purposes of this
reply.

2
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 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).

We do not believe that the COTAs meet the primary duty requirements of § 541.301(a).
The COTAs’ primary duty does not 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). Occupations that “require only a four-year
degree in any field or a two-year degree as a standard prerequisite for entrance into the
field . . . do not qualify for the learned professional exemption.” 69 Fed. Reg. 22,121,
22,150 (Apr. 23, 2004). See Wage and Hour Opinion Letter
FLSA2005-9 (Jan. 7, 2005)
(two-year associate degree paralegal programs do not qualify as prolonged course of
specialized intellectual instruction); Wage and Hour Opinion Letter May 2, 2001
(avionics technicians with training equivalent to associate’s degree do not qualify for the
learned professional exemption) (copy enclosed). Therefore, the completion of 60
semester hours does not qualify as a “prolonged course of specialized intellectual
instruction.” 29 C.F.R. § 541.301(d).

Further, it is our opinion that COTAs do not meet the definition of a registered or
certified medical technologist. The regulations contain specific academic requirements
for exemption:

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). Becoming a COTA only requires 60 semester hours of study,
rather than the more rigorous course of study required for registered or certified medical
technologists.

3
The existence of a mandatory, accredited certification program for COTAs, standing
alone, does not satisfy the regulatory requirement for a prolonged course of specialized
intellectual instruction for entry into the field. According to the Preamble to the 2004
revisions to Part 541 of the regulations:

Accredited 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. at 22,157.

Consequently, because the occupational therapist assistant occupation does not require
“knowledge of an advanced type . . . customarily acquired by a prolonged course of
specialized intellectual instruction,” it is our opinion that these employees do not qualify
for the “learned professional” exemption. 29 C.F.R. § 541.300(a)(2).

Additionally, the COTAs do not qualify for the exemption for administrative employees
in educational establishments. See 29 C.F.R. § 541.204. Section 541.204 provides an
exemption for employees “whose primary duty is performing administrative functions
directly related to academic instruction or training in an educational establishment or
department or subdivision thereof.” 29 C.F.R. § 541.204(a)(2). Section 541.204(c)(2),
however, states that “jobs relating to the health of the students . . . do not perform
academic administrative functions” and do not fulfill the requirements for the educational
establishments 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.

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).