Police, firefighters, paramedics and nurses: when they cannot call you exempt

There is a list of jobs the regulation takes out of the exemption

The executive, administrative and professional exemption in Section 13(a)(1) of the FLSA is what lets an employer skip time and a half over 40 hours. But there are jobs the regulation itself takes out of that exemption, and they are named one by one in 29 C.F.R. § 541.3.

The U.S. Department of Labor's Fact Sheet 17J lists them: police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees.

The text is direct: those who do that work "are not exempt under Section 13(a)(1) or the regulations and thus are protected by the minimum wage and overtime provisions of the FLSA".

• Preventing, controlling or extinguishing fires of any type.
• Rescuing fire, crime or accident victims.
• Preventing or detecting crimes.
• Conducting investigations or inspections for violations of law.
• Performing surveillance.
• Pursuing, restraining and apprehending suspects.
• Detaining or supervising suspected and convicted criminals, including those on probation or parole.
• Interviewing witnesses, interrogating and fingerprinting suspects, and preparing investigative reports.

Why they fit none of the three exemptions

Fact Sheet 17J does not stop at saying it does not apply: it explains why each test fails, and that reasoning is what you use in a conversation with an employer.

They are not exempt executives because their primary duty is not management. They are not exempt administrative employees because their primary duty is not office or non-manual work directly related to the management or general business operations of the employer or the employer's customers. And they are not exempt learned professionals because their primary duty does not require advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.

On the academic degree the text is specific and worth reading twice: "although some first responders have college degrees, a specialized academic degree is not a standard prerequisite for employment". Meaning: your having a bachelor's degree does not make your position exempt, what counts is whether the position requires one.

Nurses: the rule is not the same for an RN and an LPN

Here the regulation draws a line that decides a lot of paychecks in Puerto Rico, and it sits in 29 C.F.R. § 541.301(e)(2), summarized in Fact Sheet 17N.

A registered nurse paid hourly: the U.S. Department of Labor says they "should receive overtime pay". Paying by the hour and not paying time and a half over 40 does not add up.

A registered nurse registered by the appropriate State examining board and paid on a salary basis: generally meets the duties requirement of the learned professional exemption and, if the salary reaches the applicable level, may be classified as exempt. Both conditions have to hold, duties and salary.

A licensed practical nurse (LPN) and other similar health care employees: the fact sheet is blunt. They 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, and they are entitled to overtime pay.

The figure the federal fact sheets do not carry for Puerto Rico

Fact Sheets 17J and 17N both repeat the $684 weekly salary level, because they are national documents. In Puerto Rico that is not the figure.

The U.S. Department of Labor's own salary levels page carries a separate row: "Special Salary Level for Employees in Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands: $455 per week (equivalent to a $23,660 annual salary)".

That cuts both ways. On one side, someone here can be classified as exempt while earning considerably less than would be required in a state. On the other, if you earn less than $455 a week the salary requirement is not met and the exemption cannot reach you through that route, whatever you do. We explain it in full in the exempt-employee guide.

If you think you are misclassified

This guide explains what the regulation says; it classifies nobody. Every case turns on the actual duties of the position and how you are paid, not on the title printed on the paper.

There are two paths and they are not mutually exclusive: the Act 2 of 1961 summary procedure in the Puerto Rico courts, and the federal complaint with the Wage and Hour Division, which is confidential and costs nothing to file. We have a guide for each.

The Wage and Hour Division helpline is 1-866-487-9243, 8:00 a.m. to 5:00 p.m. in your time zone. And before you call, start your own record of hours today: date, clock-in, clock-out.

The Department of Labor warns that its fact sheets are general information, not official statements of position like the regulations, and that their contents do not have the force and effect of law.