Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 109 • Novelists • Persons holding positions with primary responsibility for writing in advertising agencies 595 Journalists may satisfy the requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality, or talent. A journalist will not qualify as an exempt creative professional if he or she only collects, organizes, and records information that is routine or already public, or if he or she does not contribute a unique interpretation or analysis to a news product. 596 (b) Recognized Field of Artistic or Creative Endeavor The creative professional exemption requires that the work be performed in a “recognized field of artistic or creative endeavor.” 597 This includes such fields as music, writing, acting, and the graphic arts. d. Computer Professional Exemption The FLSA exempts computer professionals from mandatory overtime compensation. 598 Massachusetts has not specifically adopted this exemption, and it is unclear whether it applies to Massachusetts employees. 599 Some computer employees who qualify for the computer professional exemption may also be exempt pursuant to the administrative or executive exemptions. 600 Thus, even if this specific exemption is found inapplicable to Massachusetts employees, certain employees may still meet the requirements for either the administrative or executive exemption. Employers should note that the exemption for computer professionals applies only to employees involved in complex programming and systems or program design. Consequently, information technology and help desk employees usually do not qualify for the exemption. 601 595 Id . 596 29 C.F.R. § 541.302(d). 597 29 C.F.R. § 541.302(b). 598 29 U.S.C. § 213(a)(17). 599 While no Massachuset t s authority specifically adopt s this provision, the reasoning applied by the DLS in an opinion let ter adopt ing the FLSA’s exempt ion for highly compensated employees appears equally relevant to the computer professional exempt ion. See DLSOpinion Let ter MW-2008-004 (July 14, 2008) (DLSart iculat ing it s belief that the Massachuset t s overt ime regulat ions incorporate wholesale the federal exempt status regulat ions: “The [federal regulat ions’] salary, salary basis, and dut ies test s are incorporated by reference into the state regulat ion, and this incorporat ion includes the provisions for ‘highly compensated employees.’”). This broad incorporat ion presumably includes the computer professional exempt ion. 600 29 C.F.R.§ 541.402. 601 See, e.g. , DOL Wage & Hour Opinion Let ter FLSA2006-42 (Oct . 26, 2006) (opining that IT support specialist was non-exempt where employee’s primary duty was diagnosis and resolut ion of computer-related problems, even though employee spent some t ime “part icipating in the design of client configurat ions and analyzing and select ing new technology”).