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The Fair Labor Standards Act (FLSA) is the federal law that requires that most employees in the United States be paid at least the federal minimum wage for all hours worked (currently $7.25 per hour) and be paid overtime (except in agriculture). Overtime means getting paid at least 1.5 times your regular rate for all hours you work beyond 40 hours in a workweek.

However, if you are employed as a professional with a TN visa, the law says that your pay may be different. There is an exception says that neither the federal minimum wage nor the right to overtime applies to professional workers; instead, they must be paid a salary of at least $684 per week. Sometimes employers try to take advantage of this exception in order to pay professionals with TN visas less, when really this exception shouldn’t apply to them. If you are paid a salary of less than $684 per week, if you are paid an hourly rate, or if your main work duties don’t require advanced knowledge or creative work, then the exception might not apply to you. If the exception doesn’t apply to you, then you might be entitled to the federal minimum wage and overtime pay for any hours you work beyond 40 in a work week. In some cases, you could have the right to a higher pay than what you are receiving.

Two types of professional workers are included in this exception: learned professionals and creative professionals.

Learned Professionals

For this exception to apply, workers must:

• The main duty of the TN worker must be to carry out work that requires advanced knowledge, defined as predominantly intellectual work and including work that requires the constant exercise of discretion and judgment. The advanced knowledge must be in a field of advanced academic specialization and it must be obtained through a prolonged specialized course of intellectual instruction. This includes fields like: law, medicine, theology, engineering, architecture, pedagogy, pharmacy, actuarial sciences, accounting, and other occupations outside of mechanical or technical work.
• Be paid at least $684 per week.

If you don’t have an advanced academic degree, if your principal tasks don’t require advanced academic knowledge, or if you are not paid a salary of at least $684 per week, this exception might not apply to you and you may be entitled to the federal minimum wage and overtime pay. If so, you may have the right to higher pay than you are currently receiving, depending on the specific details of your case.

Creative Professionals

For the creative professional exception to apply, the following requirements must be met:

• The principal duty of the TN worker must be to carry out work that requires invention, imagination, originality, or talent in an artistic or creative field. This includes fields like writing, music, acting, and visual arts.
• Be paid at least $684 per week.

If your principal duty doesn’t require imagination, originality, or talent in an artistic or creative field, or if you are not paid a salary of at least $684 per week, this exception may not apply to you and you may have the right to the federal minimum wage and overtime pay. If so, you may be entitled to a greater pay than you currently receive, depending on the details of your case.

If you have questions about how you are being paid, whether hourly or by the type of work you do, Centro de los Derechos del Migrante, Inc. (CDM) can assess your situation and recommend a course of action. CDM’s services are always free. Please contact us:

• From the United States: 1-855-234-9699
• From Mexico: 800-590-1773
• By email: [email protected]

Imágen: Flickr/Sarah Y Richards 2015/Vía Flickr.com

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