The FLSA Exemption Question Everyone Is Asking About This Is Us

Warning: Contains This Is Us spoilers.

The Pearson couple, Beth and Randall, from This Is Us is one of my top two favorite married TV couples (the other being Tami and Eric Taylor from Friday Night Lights). The Pearsons are relatable to me—Randall’s character specifically—for several reasons: Like the Pearsons, the Reeds are an African-American family with two professional parents and younger children who are trying to balance it all (also, like Randall, Tim Reed is a nerd who managed to marry a woman who is out of his league).

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Beth and Randall appear to have reached a crossroads after some major life developments through a couple of seasons, like:

  • Randall finding his long-lost biological father, William Hill, and moving him into the Pearson home;
  • Randall deciding that he wants to foster a child;
  • Randall quitting his high-paying job and then deciding to buy a dilapidated building in William’s old neighborhood in Philadelphia; and
  • Randall running for city council in Philadelphia despite living more than 100 miles away in Alpine, New Jersey.

Now that I think about it, lately, Randall has been making many impulsive life decisions that have deeply impacted the Pearson family.

After being laid off from her job, Beth heeds the advice of Randall’s late biological father William. Before dying, William told her that although she has been the bass in her jazz quartet of a marriage by holding the whole thing together, at some point, she needs to take the reins as a solo trumpeter. So, rather than staying at home to support Randall’s city council position and doing all of the child rearing, Beth decides to pursue her passion for dance by becoming a ballet instructor. With stretched time and finances, Randall asks Beth to “put a pin” in her dance-related aspirations. Beth (understandably) declines to do so, and after mistakenly believing that Beth stood him up for an important work dinner, Randall leaves her a voice message saying, “I hope you’re off having fun talking about how to teach bored housewives how to twirl better. Grow the hell up, Beth”—not a good look.

This leads me to the question I think any reasonable person would come to: Is Beth Pearson’s ballet instructor position exempt from the minimum wage and overtime laws set forth in the federal Fair Labor Standards Act (FLSA)?

A Lesson in Exemption

Under the FLSA, most employees in the United States must be paid at least the federal minimum wage (currently $7.50 per hour) and pay of 1.5 times their regular rate for hours worked over 40 in a workweek. However, the FLSA provides exemptions from these requirements for individuals employed as bona fide executive, administrative, and professional employees (among other exemptions that do not merit discussion here).

Analysis of whether an exemption applies to a particular employee is generally fact-specific, so given that I am basing my analysis on only a few facts that I have gleaned from a television show, it should be taken with a grain of salt.

A Grande Interpretation

That said, for the executive exemption to apply, an employee must primarily be involved in managing the enterprise (or a subdivision of the enterprise); must customarily and regularly direct the work of two or more full-time employees; and must have the authority to hire or fire employees (or at least have weight be given to his or her suggestions as to hiring, firing, advancement, and promotion). The administrative exemption applies when an employee’s primary duty is the performance of office or nonmanual work directly related to the employer’s or its customers’ management or general business operations. While future Beth may run a dance studio and, therefore, qualify for the executive or administrative exemption, the current Beth is simply an instructor.

The FLSA exempts two types of professional employees: (1) learned professionals and (2) creative professionals. The learned professional exemption generally applies to professions for which specialized academic training is a prerequisite for entrance into the profession. Those employees who fall within the learned professional exemption include—for example, lawyers, doctors, theologians, accountants, engineers, architects, and other professions where an appropriate academic degree is generally required. Presumably, Beth does not need a degree to teach ballet, so the learned professional exemption does not apply.

“To qualify for the creative professional exemption, an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical, or physical work.” (See 29 Code of Federal Regulations (CFR) § 541.302(a).) The applicable regulations state that while determinations of whether the creative professional exemption applies “must be made on a case-by-case basis,” the following types of workers generally qualify: actors, musicians, composers, conductors, and soloists; painters who, at most, are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short story writers, and screenplay writers who choose their own subjects and hand in a finished piece of work to their employers; and persons holding the more responsible writing positions in advertising agencies (29 CFR § 541.302(c)). Based on limited information, Beth’s position as a ballet instructor does not clearly fall within the creative professional exemption.

For the exemptions above to apply, an employee must be compensated at a rate of no less than $455 per week (though the U.S. Department of Labor has proposed that the rate be increased to $679 per week, with the higher rate likely to become effective in 2020). It is not clear how much Beth makes as a dance instructor, so we cannot say with certainty whether she even meets this threshold compensation requirement. Also, it is unlikely that she meets the $100,000-per-year salary threshold for highly compensated employees who may be classified as exempt if they perform office or nonmanual work and at least one of the duties of an exempt executive, administrative, or professional employee.

A Likely Finale?

Finally, the FLSA also exempts employees “with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed” (29 CFR § 541.303). However, the definition of “educational establishment” set forth in the applicable regulations likely does not apply to Beth’s dance studio.

So, to answer the question on everyone’s mind, Beth Pearson is likely not exempt from the FLSA’s minimum wage and overtime requirements. I also don’t believe that she and Randall will get a divorce because it would be an extremely unpopular move.

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