I have received various answers about the exemption status of in house graphic designers. Should that job be classified as exempt or non exempt? Have there been any cases on this?

It's impossible to answer your question without specific knowledge of what the individual(s) specific job duties are. Exempt/non-exempt status is not determined by job title and not all Graphic Designers are equal. One designer might just follow someone else's direction, while another is responsible for enormously creative and artistic work.

Take a look at the following:

Professional exemption (http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17d_professional.htm)

ESSENTIAL JOB FUNCTIONS
1. Plans marketing concept and prepares work to be accomplished by gathering information and materials.
2. Defines project parameters
3. Illustrates marketing concept by designing rough layout of art and copy regarding arrangement, size, type size and style, and related aesthetic concepts.
4. Prepares finished copy and art, using design software programs, printing, mock ups as needed. Prepares finished copy, final layout and art.
5. Submits rough layout for approval of marketing concept.
6. Completes projects by coordinating with outside agencies, art services, printers, etc.
7. Prepares files for print production
8. Uses knowledge of current graphic design software to produce graphic art and visual materials for promotions, advertisements, films, packaging, and informative and instructional material through a variety of media outlets.
9. Develops innovative ideas and concepts.
10. Is aware of budget and manages time accordingly
11. Helps train Junior Designers.
12. Remains abreast of technological advances in the field and is able to identify areas of use in the organization.
POSITION REQUIREMENTS
Critical knowledge, skills, or abilities, which are necessary for a new person to perform at the acceptable entry-level of the position.
1. BA/BS in Graphic design or related field, or equivalent work experience
2. Minimum 3-5 years graphic design and media print design experience
3. Computer knowledge and experience in Word, Excel, PowerPoint, Photoshop, Illustrator, InDesign, QuarkXpress Acrobat, Dreamweaver, HTML, Fireworks and Flash
4. Strong Graphic Design, Web User Interface Design, and Multimedia Content Development
5. Understands fundamentals of visual communication and design (color theory and digital color management) including page layout techniques.
6. Possesses knowledge of typography, designing with type, layout, and font management
7. Understands formatting, documentation standards and guidelines.
8. Outstanding creative design skills. Strong creative ability.
9. Outstanding technical skills/ability to troubleshoot
10. Recognizes project creativity/profitability tradeoffs.
11. Some business understanding and financial skills.
12. Has experience working collaboratively across multiple functional areas to implement web site design initiatives
13. Understands client industry, website and is able to research industry standards about the client’s company.

Sounds exempt to me.

Agreed with a caveat. Let's say all of the above is true, but the employee still spends a large majority of their time opening mail, cutting pictures out of magazines and mixing glue. Technically one must look not only at the duties but at the time being spent on each duty. An employee who spends a large majority of their time doing Non-Exempt tasks is Non-Exempt no matter how impressive their Exempt tasks sound. I have worked for employers who tried (unsuccessfully) to argue that as long as they tried to add a bunch of Exempt sounding tasks to the job description that no one would notice that most of the employees were basically pulling oars in time with the drum.

So lets say the employee spends more than 51% of her time on #3 and #8 tasks. How would you classify it?

Sounds Exempt. Just be clear however that the employer has an incentive to argue in the other direction and to argue that perhaps you are being overly optimstic with your 51% projection. I deliberately used the phrase "large majority" several times in my answer because I do not like arguing 51% solutions in court.

I get it. They need to be doing those duties most of the time with non exempt level duties at a minimum.

I really thought the job was non exempt, because most of the employee's time is on the computer, but I guess in the professional creative exemption, the skill required is seen as more qualitative, even though the work is very production driven.

Thanks for your help.

I get it. They need to be doing those duties most of the time with non exempt level duties at a minimum.


I would not necessarily say that NE duties must be minimal. But I would say that I do not like marginal classifications, but rather ones where I can argue that say 65% or more of the time is spent on legitimately Exempt tasks. Then if the employee wants to argue at the margins, they can maybe argue it down to 55%-60% (or not) but they cannot flip the classification. I am in CA and I generally assume that in court or administrative actions that "ties" go to the employees. So if you are the employer, make sure you stay away from very close classifications. If you have to take "happy pills" to come up with a 51% Exempt classification, save everyone the effort and just call the person Non-Exempt.