In Rowe v. Olthof Funeral Home et al., a Western District judge held on summary judgment that the plaintiff, a funeral director, was an exempt “learned professional” not entitled to overtime compensation under the FLSA. Defendants satisfied, by clear and convincing evidence, the “salary test” and the “duties test” for application of the exemption.
“Salary Test”: The “salary test” was satisfied because plaintiff “was paid more than $455.00 per week, and was paid on a salary basis as that term is defined under 29 C.F.R. § 541.602(a).”
“Duties Test”: Defendant established the three elements required for application of the “duties test”, namely, that “(1) the employee must perform work requiring advanced knowledge; (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. § 541.301.
1. “advanced knowledge”
As to the first element, the court found relevant that, among other things, plaintiff “almost exclusively engaged in work that required the consistent exercise of discretion, judgment and higher learning” and/or that did not require supervision or permission. Such work included embalmings, body removals, suturing, and using preservatives to account for skin, organ, or bone donations.
2. “field of science or learning”
As to the second element, the court pointed to the fact that the embalming and cremation processes required plaintiff to know and apply sciences such as anatomy, biology, and chemistry; to address unique, body-specific problems; and to compensate for a range of “variables such as body size, removal of organs or bones, and how long the body had been dead when determining the right mix of chemicals to use to embalm the body”.
3. “prolonged course of specialized intellectual instruction”
As to the third element, the court cited the “prolonged course of specialized instruction” and “rigorous licensing procedure” (including two years of “focused study in an accredited mortuary science curriculum”, two exams, and a one-year residency program) that a prospective funeral director must endure. The court rejected plaintiff’s argument that because a funeral director in New York need only obtain a two-year degree, defendants “have failed to establish that funeral directors acquire their knowledge through a prolonged course of study.” First, this argument had been rejected by other courts, who have found funeral directors to be exempt “professionals”. Second, the FLSA does not require that the “‘prolonged course of study’ set forth in the duties test be limited to professions requiring a four year degree”. The court cited authorities standing for the proposition that registered nurses (who must complete a two-year academic program) are FLSA-exempt professionals.