Professional Service Agreement

Exempt Learned Professional Exemption Did Not Apply to Social Workers

November 15, 2011

In another very disappointing decision by the current Department of Labor, Wage and Hour Division, Social Workers employed by the Department of Social and Health Services in the State of Washington were nonexempt learned professionals, the Ninth Circuit held, addressing for the first time the "prolonged course of specialized intellectual study" prong of the professional exemption.

This decision reversed a District Court in an FLSA overtime action brought by the U.S. Department of Labor on behalf of the Social Workers, the Appeals Court found the educational requirements of the Social Worker position were not sufficiently specialized to meet the requirements exemption status. (Solis v. Washington Department of Social and Health Services, Ninth Cir, 161 LC Ά 35,944)

This is a very significant decision that will affect all Social Workers and their exemption/ compensation status throughout all 50 states. Many organizations compensate Social Workers, those particularly with a Bachelor's Degree, on an exempt, salaried basis. However, this case will greatly impact the exemption status of all Social Workers as identified below.

The employed Social Workers at the State of Washington's DSHS identified the needs of children and families and arranged for services to ensure their safety and wellbeing. While the work of the individual Social Workers varies, their responsibilities include investigating child abuse and neglect, developing and recommending appropriate treatment plans to courts, evaluating child and family progress and meeting treatment plans, making placement decisions and recommending whether parental rights should be terminated.

The "Social Worker 2" position required at least a Bachelor's Degree in "social services, human services, behavioral sciences or an allied field" as well as 18 months as a Social Worker 1, or two (2) years' experience in an equivalent position. Candidate for Social Worker 3 required the same educational requirements and also needed additional work experience.

The DOL investigator concluded that the Social Worker 2 and Social Worker 3 positions did not qualify for the Learned Professional Exemption and initiated the court action. Through an appeals process, the Appeals Court wrote, an employer must show that the job requires advanced knowledge that is "customarily acquired by a prolonged course of specialized intellectual instruction." Addressing this provision for the first time, the Ninth Circuit found that, because the Social Worker positions at issue here required only a degree in one of several diverse academic disciplines or sufficient course work in any of those disciplines, DSHS did not meet its burden of showing these positions "unmistakably" met the regulatory requirement.

Thus, as we in the industry are very familiar, the requirement: "must possess a degree in social services, human services, behavioral science or an allied field" is widely utilized in the industry. Unfortunately, the Department of Labor and as supported by the Ninth Circuit Court, states that this educational requirement is too "general" in nature and not specific enough to meet the exemption status.

It is SESCO's strong suggestion that all who employ Social Workers or similar types of positions such as Case Workers, etc. conduct a thorough Wage and Hour audit to determine the exemption status. Liability is significant to include at a minimum two (2) years back wage liability and potentially four (4) years back wage liability plus attorney fees should the case end up in court.

SESCO specializes in Wage and Hour Accounting and Department of Labor investigations and we welcome your call to discuss this important case or to schedule an onsite compliance assessment. 423-764-4127