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John
John, Attorney
Category: Legal
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Experience:  Licensed and practicing attorney.
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I have a couple of questions about hiring an employee. We're

Customer Question

I have a couple of questions about hiring an employee. We're wanting to hire someone salaried, but aren't sure they will fall under an "Exempt" employee
JA: What state are you in? It matters because laws vary by location.
Customer: Colorado
JA: Has anything been filed or reported?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: I'm making a contract
Submitted: 8 months ago.
Category: Legal
Expert:  John replied 8 months ago.

Hi, thanks for submitting your question today. My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today. Please note that the website may ask you if you desire premium services, such as a phone call. I do not control these prompts, and you are not under any obligation to order premium services to get a full answer from me. If you do desire premium services, however, feel free to select that option. I will have an answer for you shortly, unless I require additional information. Please be patient while I may have to research some matters before providing a response.

Customer: replied 8 months ago.
Hi John. We are hiring a photographer for our real estate photography company. They will be using their vehicle to drive to homes throughout the day with our equipment to take photographs and 3D scans of listings. To keep things simple, we wanted to make them salaried employees. Where I got caught up is the exempt vs. non-exempt. I'm not sure if their job will make them be exempt or non-exempt, but we wanted to figure that out so we can figure out how to handle their overtime hours.
Expert:  John replied 8 months ago.

There are limited types of employees that may be exempt/paid on a salary basis (Executive, Administrativ, Professional, Computer employees, outside sales, highly compensated). The only possible exemption I can see for a photographer is the professional exemption. To qualify for the learned professional employee exemption, all of the following tests must be met:

To qualify for the creative professional employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week;
The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. Now, with a photographer there is a wide leeway in the work they do. If the work requires the using of his/her professional training in the field (as opposed to just picking up a camera - like I do with my I phone - and snapping informational pictures) and creativity then the photographer is exempt. If it's just uneducated/non-creative type pictures, then it cannot be exempt work. It requires invention, imagination, originality or talent performed to be exempt.

Customer: replied 8 months ago.
Okay, its a tough distinction because there will be a creative aspect such as having a good eye for the right photo, and we will be training them on how to use the camera and the 3D scanning device. If they are non-exempt, what do we need to do to make sure they will be taking their break & lunch requirements (and what specifically are those?) We plan on routing them to 2-3 houses during the day to take pictures of. We want to make sure that if they are non-exempt that we are allocating them that time. Additionally, its OK to keep them salaried and non-exempt, right?Since they will be using their own vehicles, I made a vehicle safety policy and will have the photographers provide us with active insurance, valid license, vehicle registration etc. Is there anything else I need to be aware of with having employees use their vehicles?
Expert:  John replied 8 months ago.

My opinion is that if you have to train them to use a camera they are not exempt - that means they have no training or expertise in the field if you have to train them, thus, the exemption would not apply. So they would b non-exempt and you simply must pay them time and half for all hours worked over 40 per workweek. Colorado is one of the few states that not only requires employers to provide breaks, but also requires that employees be paid for some of this time. Colorado requires employers to offer both a meal break and paid rest breaks.
Meal Break

Under Colorado law, employers must give employees a 30-minute meal break once the employee has worked five hours. An employer does not have to pay for this time; in other words, meal breaks are unpaid. Covered employers include those in retail and service, food and beverage, commercial support service, dry cleaning and housekeeping, and health and medical industries. Some professions are specifically excluded from this requirement, including teachers and nurses.

If the nature of the job prevents employees from taking a break from all duties, employers may provide an on-duty meal period. However, this time must be paid.
Rest Breaks

Colorado also requires employers to provide rest breaks. (Covered employers are the same as for meal breaks.) Employers must allow employees to take a paid ten-minute rest break for every four hours (or major fraction) worked. If practical, these breaks must be provided in the middle of the work period.

The vehicle use policy is good as you have it.

Expert:  John replied 8 months ago.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers (even though the website already charged you, it does not credit me with the answer unless and until you indicate you are satisfied with the answer). Thank you, ***** ***** wish you all the best with this matter.

Expert:  John replied 7 months ago.

Sorry to bother you, but you haven't yet provided a positive rating for this answer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit and I get no credit for the work I put into the matter. Thanks.