Dear Rita in HR:
Should social workers be classified as exempt or nonexempt? In the process of updating our job descriptions I have looked at many from other agencies and am confused in particular about one issue: in some cases social workers are classified as exempt (exempt from overtime) and in other cases they are nonexempt. What are they?
Dazed & Confused
Good news! We received some clear guidance last week with the first federal appellate decision directly addressing the overtime exempt status of social workers in Solis v. State of Washington DSHS (9th Cir. 2011) No. 10-35590. The quick answer is that some, but not all, social workers meet the professional exemption — and surprisingly, it doesn’t only depend on the job duties: it also depends on the educational prerequisites of the position.
The Solis court held that the Washington social workers were not exempt from the Fair Labor Standards Act (FLSA). The responsibilities of the social workers in the Solis case look at first glance as if they would make the positions exempt. For example, they were responsible for:
- Investigating child abuse and neglect
- Developing and recommending treatment plans to courts
- Evaluating child and family progress in meeting treatment plans
- Placing children, and
- Recommending whether parental rights should be terminated.
But the court stated they were nonexempt not because of the job duties, but because the jobs did not require sufficient educational prerequisites.
“Exempt” compared to “non-exempt”
As a fast refresher: the FLSA (administered by the Department of Labor — DOL) is the federal law that requires employers to pay overtime compensation to employees who work more than 40 hours in a week. All employees must receive overtime pay unless the employer can prove that the position is exempt from the FLSA. When considering social workers there are three relevant exemptions — the so-called “white-collar” exemptions — executive, administrative, and professional. Social workers who supervise two or more employees may fall under the executive exemption, but they would not meet the criteria for the administrative exemption. Thus, if a social worker does not supervise two or more employees, the only other possible exemption for a social worker is “learned professional.”
Under the DOL regulations, to be classified as an exempt learned professional the primary duties of the employee must require “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” The regulations go on to state that the professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through experience.
In the Solis case, the State of Washington required that its social workers have:
- A college degree in “social services, human services, behavioral sciences or allied field,” or all three of the following:
- A degree and 30 semester credits or 45 quarter credits in social services
- A minimum of 18 months’ experience as a social worker
- Completed additional formal training provided by their employer.
The court held that these educational prerequisites were not sufficient to meet the standard for the professional exemption because they did not amount to “specialized intellectual instruction.”
When can social workers be classified as exempt?
So what would it take for a social worker’s educational requirement to satisfy the “advanced learning” requirement for the professional exemption? The Solis court looked favorably on the conclusions reached in two DOL opinion letters that found that the following educational requirements met the test:
- A master’s degree in social work, human services, drug and alcohol, education, counseling, psychology, or criminal justice, or
- A bachelor’s degree in human behavioral science which includes 30 semester or 45 quarter hours either in development of human behavior, child development, family intervention techniques, diagnostic measures, or therapeutic techniques, such as social work, psychology, sociology, guidance and counseling, and child development.
Alternatively, requiring a social worker to be licensed by the state, if the licensing procedure requires a specialized course of study, would also be sufficient. What is not sufficient are general degree requirements that can be satisfied with any number of diverse academic majors such as:
- A bachelor’s degree in social sciences
- A bachelor’s degree in human services, behavioral sciences, or an allied field.
Remember: you cannot use years of experience as a social worker alone to meet the professional exemption despite the vast knowledge that a non-degreed social worker may have. Simply stated, an employee cannot be an exempt professional unless the job requires the employee to have previously completed a course of specialized intellectual instruction.
So go through your job descriptions and review the minimum educational qualifications in light of the primary duties of the position to evaluate whether the educational prerequisites are narrowly drafted to evidence specialization for the work that the employee will perform. Be as specific as possible about the number and type of courses that are required if the degree is not directly related to the position (for example, a biology degree for a biologist).
Lastly, don’t forget that in addition to the educational requirement to qualify for the learned professional exemption, the employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is “predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment.”
For additional details on the professional exemption see the DOL’s fact sheet on the professional exemption here.
What is scary about the Solis case is that it was not a lawsuit filed by a group of disgruntled employees, but was an enforcement action filed by the DOL based on the complaint of a single employee . . . and it overturned the overtime exempt status of hundreds of employees in 44 field offices. Undertaking a proactive review of your job descriptions and overtime classifications is a great way to avoid this fate and steer clear of the Obama administration’s increased enforcement activities.
If you want to learn more, we are holding a webinar on October 18, 2011, about the ins and outs of the Executive, Professional, and Administrative overtime exemptions. Click here to register.
Ellen Aldridge is an HR attorney at the Nonprofits Insurance Alliance Group. She and her co-author in “Ask Rita” — Pamela Fyfe — answer thousands of HR questions free for nonprofits who are insured through NIAC or ANI (NIAG members).
When we asked Ellen if she herself were exempt or nonexempt, she responded: “I am finding that I am not exempt from going on thrill rides at water parks with my children, despite my aversion to heights.”
See also in Blue Avocado:
social worker environment encompasses a wide range, like hospitals, prisons, in homes and schools. They do their job through research, counseling, and handling casework. Social workers deal with abused children and wives, drug addicts, and the poor. The even tackle environmental issues with their community. If this appeals to you, read more about social workers and the training required to become one.
I also understand that there is a minimum salary requirement of $23,660 for the social worker to be exempt. Is this correct?
Interestingly, a California Court of Appeal just addressed the issue of unlicensed professionals in a case involving a law school graduate who was awaiting the results of his bar exam. In Zelasko-Barrett v. Brayton-Purcell LLP which can be found at: http://www.courtinfo.ca.gov/opinions/documents/A130540.PDF the court found that the unlicensed law school graduate still satisfied the test for the learned professional exemption because he had completed law school which is an "advance course of learning" and exercised discretion and independent judgment. Any professional who is still a student would not necessarily meet the exemption because the advanced course of study was not completed — but the precedent of this case could potentially be applied to other professionals who have completed an advanced course of study and are just waiting their licensing results. Of course, if because of the lack of license they employee did not exercise any discretion or independent judgement in the course of performing their duties, they would not meet the "duties' portion of the learned professional exemption test. The law is always evolving! Regards, Rita
One of the issues of confusion for us is whether professionals in training (that is, they have the advanced degree but aren’t licensed yet), are considered exempt or non-exempt. One agency similar to us treats them as exempt; we don’t. My thinking is that being a professional means being able to operate with limited supervision whereas professionals in training in California in mental health have very specific supervision requirements and can’t practice on their own. So I take the conservative approach.
Thanks for this great info. Another issue to keep in mind is that requirements of individual states may add another layer of complexity. For example, my understanding is that in California the professional exemption only applies to employees who are licensed or certified by the State. – Brian K. Wilson
I really appreciate this article. At the same exact time I disagree completely with the DOL on this one. Overall the trend of requiring professional degrees and certificates rather than experience is a bad one and discriminates against older people who started their jobs before these requirements were in place and against people who don't have the financial means to get the degrees.
if you get the degree, you will be an exempt employee who will not be paid for overtime. Isn’t it better to be nonexempt and be protected by Fair labor Act
Would the executive exemption also apply if the two or more supervised workers were volunteers as opposed to paid staff?