In Puerto Rico, certain professionals, including those in the creative field are exempt under minimum wage laws. The exempt categories are similar to those under federal law.
In addition to the requirements as to the wage rate and form of payment, the professional employee exemption applies only if its essential function of work requires advanced knowledge in a scientific or scholarly field predominantly intellectual and includes the consistent exercise of discretion and independent trial. No work may be routine mental, manual, mechanical or physical. There are two types of professionals exempt.
Professional (not creative)
Usually the advanced knowledge must be used to analyze and interpret facts and circumstances and must have been acquired by prolonged course of university education and specialized intellectual study. College is not enough, nor courses in mechanical arts or skilled jobs. Specialized academic preparation has to be a prerequisite for acquiring the profession.
Types of professionals recognized under this exemption include those in the areas of engineering, science, pharmacy, law, medicine, education, accounting, architecture, among others. Other professions may qualify depending on their level of education. These can even include dental hygienists, medical technologists, physician assistants, athletic trainers and chefs,
Having a degree in the profession concerned is not an absolute requirement. Employees in these professions who obtained their advanced knowledge through work experience and intellectual instruction, may, in certain limited circumstances, qualify under the exemption if they: (a) have the same level of knowledge and (b) perform the same work as professionals with a degree or academic preparation.
The distinctions are not so simple. Take the example of an accountant-exempt or not? Depends. Although it has a BA in accounting, if the type of work done is of the type that most employees acquire skill by experience, because this work is not exempt. The fact that the employee has a diploma of advanced studies becomes irrelevant because it is a requirement of the post he occupies. For example, if an engineer works as a doorman at a hotel, will be non-exempt and the fact that having a college degree in engineering does not make him exempt.
Creative Professional
Creative professionals are those whose main function is work that requires own creation and originality in a recognized field of creative effort.
The exempt status is less classifiable as if the creative or not depends on certain advanced studies diplomas. The elements considered are imagination, originality and talent in the artistic or creative field.
Examples of a creative professional:
* Musicians
* Composers
* Novelists
* Essayists
* Creative advertising agencies
* Painters
* Photographers
* Reporters if they write books, go on the air, interpret story events, write columns
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