My husband is salary however makes less then 455.00 a week. He is in Ohio and works as a radio personality. He often works more then 40 hrs a week however, his employer is not paying him OT. I think he does not qualify as exempt since he is not making 455.00 a week under the creative professional exemption. Am I over looking something?

I don't think you're missing anything. I agree with you. The fact that he sometimes makes more than the $455/week is irrelevant. If that amount isn't guaranteed, no matter how few hours worked (with very limited exceptions), he does not meet the salary test and therefore, cannot be properly classified as exempt.

Possibly. This is way outside my area of expertise, but under the FLSA law section 13(b)(9), announcers, news editors, or chief engineers of certain small market radio or television stations are exempt from the overtime under the Act.

Possibly. This is way outside my area of expertise, but under the FICA law section 13(b)(9), announcers, news editors, or chief engineers of certain small market radio or television stations are exempt from the overtime under the Act.

Thanks, DAW, didn't know that. Do you read that as nonexempt for all intents and purposes except overtime? And of course, you DID mean FLSA, not FICA, right? ;) :p

Thanks, DAW, didn't know that. Do you read that as nonexempt for all intents and purposes except overtime? And of course, you DID mean FLSA, not FICA, right? ;) :p

Yes on FLSA instead of FICA obviously.

"Non-exempt" is a probably. I am quoting an answer from a book, so this is not something I have researched. I would assume that this leaves what you have stated, since nothing else was mentioned, but assumptions have been wrong in the past. I have never actually worked at a radio station and have never hard researched this issue. My best guess is that minimum wage is still in play, but the key word here is "guess".

The other obvious question is "small market" and that was a full page worth of discussion, too much to re-type. I can say that if the main station is in a city of over 100,000 people is not small market. The next test is sort of at least 40,000 in the city and at least 100,000 in the broadcast area. If not, then the answer gets complicated. DOL also used the FCC rules for part of the defintition.

DOL also used the FCC rules for part of the defintition.

Oh, goody!

Nothing like regs referring to other regs to keep things simple.

Oh, goody!

Nothing like regs referring to other regs to keep things simple.

You betcha. :rolleyes: :mad:

Try reading the IRC. X as defined in Section whatever, which refers to another definition in some other section, which refers to.......................... oh, never mind.

My husband is in what is considered a small market. I was looking at the Profession exemption "creative professional" exemption test. 1. He makes less then 455.00 wkly and 2. Employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in the field of creative endeavor. Is there some thing in the FLSA regs. that applies specifically to broadcasters?

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_793/toc.htm

Announcers, news editors, & chief engineers of radio & TV stations in small communities are exempt from the overtime provision only of the FLSA.