84 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP Persons holding positions with primary responsibility for writing in advertising agencies467 Journalists may satisfy the requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality, or talent. A journalist will not qualify as an exempt creative professional if he or she only collects, organizes, and records information that is routine or already public, or if he or she does not contribute a unique interpretation or analysis to a news product.468 (b) Recognized Field of Artistic or Creative Endeavor The creative professional exemption requires that the work be performed in a “recognized field of artistic or creative endeavor.”469 This includes such fields as music, writing, acting, and the graphic arts. d. Computer Professional Exemption The FLSA contains a specific exemption for computer professionals from mandatory overtime compensation.470 Massachusetts has not specifically adopted this exemption, and it is unclear whether it applies to Massachusetts employees.471 Some computer employees who qualify for the computer professional exemption may also be exempt pursuant to the administrative or executive exemptions.472 Thus, even if this specific exemption is found inapplicable to Massachusetts employees, certain employees may still meet the requirements for either the administrative or executive exemption. Employers should note that the exemption for computer professionals applies only to employees involved in complex programming and systems or program design. Consequently, information technology and help desk employees usually do not qualify for the exemption.473 467 Id. 468 29 C.F.R. § 541.302(d). 469 29 C.F.R. § 541.302(b). 470 29 U.S.C. § 213(a)(17). 471 While no Massachusetts authority specifically adopts this provision, the reasoning applied by the DLS in an opinion letter adopting the FLSA’s exemption for highly compensated employees appears equally relevant to the computer professional exemption. See DLS Opinion Letter MW-2008-004 (July 14, 2008) (DLS articulating its belief that the Massachusetts overtime regulations incorporate wholesale the federal exempt status regulations: “The [federal regulations’] salary, salary basis, and duties tests are incorporated by reference into the state regulation, and this incorporation includes the provisions for ‘highly compensated employees.’”). This broad incorporation presumably includes the computer professional exemption. 472 29 C.F.R.§ 541.402. 473 See, e.g., DOL Wage & Hour Opinion Letter FLSA2006-42 (Oct. 26, 2006) (opining that IT support specialist was non-exempt where employee’s primary duty was diagnosis and resolution of computer-related problems, even though employee spent some time “participating in the design of client configurations and analyzing and selecting new technology”).
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