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4 NewsBeat March 2016 discretion and judgment in its performance § Is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) § Is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time What does "primary duty" mean? "Primary duty" has been interpreted to mean the principal, main, major, or most important duty that the employee performs. A determination of an employee's primary duty on all the facts in each case, with the major emphasis on the overall character of the employee's job. What does "exercise of discretion and judgment" mean? In general, the exercise of discretion and judgment involves both of the following: § The comparison and evaluation of possible courses of conduct § Acting or making a decision after considering the possibilities In general, such an employee must have the authority to make an independent choice, free from immediate direction or supervision. Factors to consider include (but are not limited to): • Does the employee formulate, affect, interpret, or implement policies or practices? • Does the employee carry out major assignments in conducting the business? • Does the employee's work affect business operations to a substantial degree? • Can the employee commit the employer in matters that have significant financial impact? • Does the employee have authority to waive or deviate from established policies and procedures without prior approval? If an employee's decisions are revised or reversed after review, it does not mean that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. What is a "field of science or learning"? Fields of science or learning include: § Law § Medicine § Theology § Accounting § Actuarial computation § Engineering § Architecture § Teaching § Various types of physical, chemical, and biological sciences § Pharmacy § Other occupations that have a recognized professional status and are distinguishable from the mechanical arts or skilled trades, where the knowledge could be of a fairly advanced type, but is not in a field of science or learning. What is a "prolonged course" of instruction? The best evidence of meeting this requirement is having the appropriate academic degree for entry into the profession, typically acquired at the college level. However, the word "customarily" in the regulation permits other employees in such professions to meet this requirement if they meet all of the following requirements: § Attained advanced knowledge through a combination of work experience and intellectual instruction § Have substantially the same knowledge level as other employees who have acquired an academic degree § Perform substantially the same work as those employees What is a "recognized field of artistic endeavor"? A recognized field of artistic endeavor is a field of work where the results cannot be produced by a person endowed with general manual or intellectual ability and training, but which depend primarily on the invention, imagination, or talent of the employee. Renowned labor attorney to speak at NYPA convention about new overtime pay rules — (con't.)

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