If you pay your mid-level providers a salary and think they’re automatically exempt from the overtime rules under the Fair Labor Standards Act (FLSA), you had better make sure they meet the new labor law salary requirement that takes effect Dec. 1 — or you might be in for a rude surprise.

In fact, an attendee to one of our webinars on the topic asked the specific question of whether nurse practitioners (NPs) and physician assistants (PAs) are exempt under the FLSA. I reached out to our compliance team to get their take on it.

First, the new threshold on Dec. 1 states that to be overtime exempt, the employee must make at least $47,476 annually. But that’s just the beginning.

Generally, NPs and PAs fall under the Learned Professional Exemption to the FLSA, which means they will be overtime exempt as long as they meet a few requirements in addition to the salary.

The main benchmark for this exemption is that the individual must primarily perform work that requires advanced knowledge that is predominantly intellectual in nature and includes the consistent exercise of discretion and judgment, the compliance team said. In addition, the employee’s advanced knowledge must be in a field of science and it must be acquired through a prolonged course of specialized instruction.

This certainly seems to fit the bill for NPs and PAs. Nonetheless, we need to unpack this a little. For example, what does “primarily perform work” mean? According to the team, this means that this is their “principal, main, major or most important duty.”

Important: And you can’t make this determination based on a job title. You have to look at all of the facts for each employee, looking at the character of the employee’s job as a whole, our compliance pointed out.

Next, we have to define what “work requiring advanced knowledge” really means. “A professional employee generally uses the advanced knowledge to analyze, interpret and make deductions from varying facts or circumstances,” the team said. The work cannot be routine mental, manual, mechanical or physical work, and “advanced knowledge cannot be attained at the high school level,” they added.

In addition, the advanced knowledge must be in a field of science, and the U.S. Department of Labor (DOL) includes medicine in that definition. So that certainly applies to NPs and PAs as well.

Finally, the compliance team noted that the advanced knowledge must be acquired through prolonged study of specialized instruction. “The best evidence of meeting this requirement is having the appropriate academic degree,” the team said. And that certainly applies to NPs and PAs.

In addition to the Learned Professional Exemption, DOL also has an FLSA overtime exemption for employees who hold a valid license or certificate permitting them to practice law or medicine, as long as the worker is actively engaged in that practice. If your NP or PA meets this exemption, then the new salary requirement doesn’t apply, and you don’t have to worry about that qualifying factor for the exemption.

One last point, remember that you must review each employee’s individual circumstances when applying these exemptions, the compliance team said. You can’t make sweeping judgments based on job titles or generalizations because those won’t hold up if an employee sues you for back overtime pay or DOL calls you on the carpet for FLSA overtime violations.

Take Aways

• DOL’s new salary requirement ($47,476 annually) takes effect Jan. 1 for full-time salaried employees.
• NPs and PAs are likely FLSA exempt as Learned Professionals.
• You must review each employee’s specific circumstances to determine if they meet the FLSA exemption requirements.