Were Bakers Creative Professionals Exempt from Overtime?

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By Jazlyn Williams

“I’m not paying you overtime because the creative nature of your work exempts you from extra pay,” bakery owner Ashley said to Pete, an employee.

“My work is more routine and less creative than you think,” Pete said. “I don’t create recipes, and I have limited freedom when it comes to decorating cakes.”

Facts: Former bakery employees filed a lawsuit claiming that they were not properly paid under federal and state labor laws. In the lawsuit, the baker and the cake decorator said that they were paid fixed weekly salaries and were not paid overtime wages or spread-of-hours compensation required under state law. They also said they were not provided with wage payment statements reflecting overtime.

The employees sought to recover the unpaid overtime wages and spread-of-hours compensation, as well as damages for the inaccurate statements.

The bakery, operated by a limited-liability company and under the direction of a manager, sought a favorable ruling from the court, claiming that the employees qualified for the creative professional overtime exemption under the Fair Labor Standards Act.

A federal district court referred the employers’ motion to a federal magistrate for a report and recommendation. The magistrate recommended that the motion be denied, citing Labor Department guidance that the exemption generally should be applied to chefs who work in five-star or gourmet establishments and whose primary tasks include designing new menu items.

The employer objected to the report’s conclusion and claimed that the FLSA does not require creative professionals to achieve professional acclaim or to actively use their culinary skills. They claimed that the law instead allows employees to be exempt on the basis of possessing experience in a creative field, without which the employees would not be considered qualified to perform related tasks.

After an apprenticeship that lasted more than six years, the baker trained as a baklava chef in Turkey and owned his own restaurant for one year, court documents said. Five years into employment at the bakery, he learned how to make other Turkish desserts and breads from local chefs and produced those for the bakery. The cake decorator received training in Turkey on how to make pastry and participated in a one-year culinary training program in Nevada.

Because the employees received special training to produce a specific variety of food, they should qualify for the exemption, the employer said. The baker was hired to oversee production of baklava and the cake decorator was hired to produce distinct Turkish pastries, the employers said.

The baker claimed that his work for the bakery included defrosting baklava rather than managing its production, in addition to creating other baked goods from scratch and performing some nonskilled tasks. The decorator claimed that he did not create cakes from scratch and that he applied premade decorations to imported cakes.

Issue: Were the employees creative professionals exempt from overtime requirements?

Decision: The employees were not exempt from overtime compensation, a federal district court ruled, adding that the employer showed that the employees were talented, but the exemption did not apply to talented employees performing noncreative tasks.

The tasks “required consistency and precision, not innovation and imagination,” said the recommendation from the magistrate, which the court adopted.

The baker’s work required preparing food in the same way over and over, the magistrate said in the recommendation. Although the decorator’s work possibly involved more creativity, the premade nature of the cake decorations limited the range of possible designs, the recommendation said.

Even if the employees performed some tasks that were creative or innovative, the employer had not sufficiently proven that creative and innovative tasks were among the workers’ primary duties, further disqualifying them from the exemption, the magistrate said.

The exemption did not apply to the employees, so the employer also remained liable for furnishing accurate wage statements, the court said ( Eren v. Gulluoglu LLC, 2017 BL 348868, E.D.N.Y., 15-CV-4083, 9/30/17).

Pointers: The creative professional exemption is a subset of the professional exemption under the FLSA. Professional employees generally must be paid on a salary or fee basis at a rate of at least $455 a week, and their primary duties must require either specialized knowledge or creativity.

Employees may qualify for the creative professional exemption if their work primarily requires “invention, imagination, originality, or talent” in a recognized artistic field, rather than “routine mental, manual, mechanical, or physical work,” the law said. The emphasis on innovation distinguishes creative professions from learned professions, which instead primarily require “intelligence, diligence, and accuracy,” it said.

The FLSA generally provides a learned professional exemption for chefs who have a degree from a four-year culinary arts program and whose work is not primarily routine or physical.

For more information, see Payroll Administration Guide’s “FLSA Exemptions” and “New York Overtime” chapters.

To contact the reporter on this story: Jazlyn Williams in Washington at jwilliams@bna.com. To contact the editor on this story: Michael Baer@bna.com.

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