We have a graphic designer who currently we designate as non-exempt. I realize they can be an exempt position but we are trying to determine if the position is really exempt. His supervisor says that the employee comes up with ideas for advertising and develops them. My concern is that he does more routine, manual work using graphic software and may not be truly creating.
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Thank you for your inquiry regarding classification of a graphic designer as exempt or non-exempt.
Unfortunately, because this type of classification is so fact and situation specific, even with the information provided we are unable to provide specific guidance on whether an employee qualifies for an FLSA exemption. Additionally, not only are the types of tasks and duties performed important, but one must also consider the extent to which these duties comprise the employee’s typical work day.
In the situation you have described, the most likely exemption to apply would be the creative professional exemption. (Though the administrative exemption does include work in functional areas such as advertising and marketing, the work must be of substantial importance to the management or operation of the specific business. For example, bookkeepers, administrative assistants, and clerks typically do not qualify because the work they perform is considered “run-of-the-mill” and is not directly related to management policies or general business operations).
Under the creative professional exemption, the result of the work must depend primarily on the invention, imagination, or talent of the employee and the work must be original and creative in character (as opposed to work that can be produced by a person with general manual or intellectual ability and training). In graphic arts this requirement is generally met by individuals who are, at most, given the subject matter or concept of their requested work.
A practical way to approach the situation would be to consider the likelihood that another individual with comparable skill and training would, when given the same instruction, arrive at a similar result. If two graphic designers given the same instruction are likely to produce reasonably comparable work, then it is unlikely that the employee is exercising a significant amount of individual invention, imagination, or talent and, rather, that he or she is primarily relying on design software, standard practices, and/or supervisory direction to reach the end result.
In general, if there are concerns that an employee does not clearly qualify for an exemption, it is best to err on the side of caution and continue to treat the worker as non-exempt and pay appropriate overtime. Alternatively you may wish to consult with local legal counsel or contact your nearest Wage and Hour Division office for guidance and one-on-one review of the specific facts of the work being performed. Finally, if you wish to further analyze the specific facts of the position, we also recommend reviewing the information on the Exempt Employees topical analysis page on HR.BLR.com.