United States: Recipe For Disaster: Properly Classifying Executive Chefs As Exempt Or Non-Exempt Under The FLSA

Last Updated: September 22 2015
Article by Kyle Petersen

Do Not Assume that the Creative Professional Exemption Covers Your Executive Chef

In recent years, the number of wage and hour lawsuits filed in federal court has steadily increased and the trend is likely to continue in the wake of the DOL's proposed amendments to the regulations establishing white collar exemptions to the FLSA's minimum wage and overtime requirements. So the time is ripe for employers to assess whether their workers are appropriately classified as exempt or non-exempt under the FLSA.

One position of particular concern for employers operating senior living or long-term care communities is the Executive Chef. With the popularity of television cooking shows and celebrity chefs who transform exotic ingredients into mouth-watering dishes that look like priceless works of art, it is often assumed that Executive Chefs necessarily fall well within the parameters of the creative professional exemption. That assumption, however, could land employers in hot water.

To avoid getting burned by a misclassification lawsuit, employers are well-advised to take steps now to determine whether their Executive Chefs may be properly classified as exempt from the FLSA's minimum wage and overtime requirements. In doing so, the employer must look beyond the job title (which certainly sounds exempt, right?) and to the duties actually being performed by the Executive Chef on a day-to-day basis.

To qualify for the creative, learned professional exemption, the Executive Chef must (1) possess a four-year specialized academic degree in a culinary arts program; (2) regularly design unique dishes and menu items (using invention, imagination, originality or talent); and (3) be paid on a salary basis of at least $455 per week (for now — if the DOL's proposed amendment becomes final, that number will more double to $970 per week, which is $50,440 annualized). Cooks who primarily perform routine mental, manual, or physical work (e.g., routine cooking and food preparation) do not qualify for this exemption. Within senior living or long-term care facilities this exemption may not apply if, for example, menu planning and procurement decisions are made at a regional or corporate level such that the on-site Executive Chef is merely executing on a plan without using any creativity or imagination.

Consider Applicability of the Executive and Administrative Exemptions for Your Executive Chefs

All is not lost, however, if the Executive Chef does not come within the ambit of the creative professional exemption. Even if the Executive Chef is not inventing new dishes or creating menus, the executive and administrative exemptions may nevertheless apply. To qualify for the executive exemption, the Executive Chef must (1) manage kitchen operations; (2) customarily and regularly direct the work of two or more employees in the kitchen; (3) have the authority to hire and fire employees or to effectively recommend the hiring and firing and the advancement and promotion of other employees; (4) customarily and regularly exercise discretion and independent judgment as to matters of significance; and (5) meet the salary basis test. Similarly, an Executive Chef can be properly classified as an exempt administrative employee if she (1) satisfies the salary basis test; (2) performs office or non-manual work regarding general business operations; and (3) customarily and regularly exercises discretion and independent judgment as to matters of significance.

Often the main concerns about the exempt status of Executive Chefs at senior living and long-term care facilities are: (1) the amount of time Executive Chefs spend preparing food; (2) the authority given to Executive Chefs to make important decisions regarding menu planning, food ordering, and other kitchen decisions; and (3) supervisory authority maintained over kitchen employees and servers by other members of facility management. For example, is an Executive Chef spending too much time on routine food preparation duties, and not enough time on managing staff and making other important decisions to meet the requirements of the executive or administrative duties? If the Executive Chef is regularly required to be a hands-on cook, it may make it more difficult to demonstrate that his/her primary duty is exempt work. However, if the Executive Chef is simultaneously supervising and monitoring the kitchen staff at the same time he/she is preparing or cooking food, the position may well be exempt. Indeed, the performance of concurrent duties has been a determinative factor in overtime cases involving chefs that were decided in favor of employers. Stay tuned for the DOL's final rule which could eliminate these exemptions for workers performing concurrent duties.

In many organizations, even though the Executive Chefs serve as a "manager" throughout the day as required for the executive exemption, the inquiry must also look at whether the Executive Chefs exercise enough independent judgment and discretion on matters of significance. For example, does the Executive Chef develop the menus, decide where to obtain food or other supplies, prepare cost estimates for food and supplies, or make other important decisions regarding kitchen or dining operations. With regard to the administrative exemption, clearly many of an Executive Chef's typical duties are directly related to the general business operations of their communities. Indeed, they are generally responsible for overseeing the preparation of meals within their communities, oversight of health and safety matters, and training kitchen staff. As with the executive exemption, the biggest obstacle to the application of the administrative exemption is determining whether the Executive Chef customarily and regularly exercises and independent judgment on matters of significance. That determination requires a fact-intensive inquiry.

Update Job Descriptions to Reflect Exempt Work

When reviewing the work of Executive Chefs to determine the appropriate classification, employers should also review and, if needed, update the job description and training materials for Chefs to ensure that the position is consistently described in an exempt fashion and reflects the employer's expectations that the employee perform exempt duties. The description, for example, should require that the Executive Chef take a management role with regard to the hiring, supervision, training, and discipline of all workers within his department, and should make clear that the primary function and purpose of the job is departmental oversight. Of course, the written description is not itself determinative of an employee's exempt status. Even so, it is important that the job description accurately reflect the employer's expectations for the duties to be performed by its exempt workers.

Monitor the Status of the DOL's Proposed Amendments

If the DOL's proposed regulation becomes a final rule, employers will need to ensure that all employees who meet the duties test are being paid the new minimum salary level. In addition, although no changes were proposed to the duties test, we nevertheless expect to see revisions to the duties test. As a result, it is important to understand both how your organization's Executive Chefs are paid and what duties they are performing so that you can ensure proper classification and/or make appropriate modifications to maintain their exempt status.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions