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Click here for the full text of this decision FACTS:The Fair Labor Standards Act (FLSA) states that employees should be paid time-and-a-half for overtime hours worked. The statute further states that there is an exemption for this overtime requirement for employees who are “employed in a bona fide executive, administrative, or professional capacity,” as those terms are defined by regulations issued by the Secretary of Labor. Fifty-nine physician assistants (PAs) and 20 nurse practitioners (NPs) who provide heath care services for EmCare Inc. in hospital emergency rooms in 20 states and are paid hourly sued the company for back pay and liquidated damages. They said they were entitled overtime pay under the FLSA. EmCare argued that the PAs and NPs are exempt from overtime payment as professionals, just as physicians are. The Department of Labor filed an amicus brief, saying the professional exemption is ambiguous and so has been interpreted by the secretary in 29 C.F.R. �541.3 as excluding PAs and NPs from the professional exemption. That is, PAs and NPs are not considered professionals under the FLSA and so are entitled to payment for overtime work. The district court found the regulation ambiguous, so it deferred to the DOL’s interpretation. EmCare appeals. HOLDING:Affirmed. The court explains that �541.3 defines a bona fide professional as an employee who satisfies certain duty requirements and is compensated on a salary or fee basis. This salary-basis test does not apply, however, to an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof. The court points out that the plaintiffs here satisfy the duty requirement, so the only question is whether they hold licenses to permitting and actually engaging in the practice of medicine (or any of its branches). The court says it will defer to the DOL’s reasonable interpretation of the rule � which would not characterize PAs or NPs as professionals � if the regulation is ambiguous. The court says it will consider the ordinary meaning of the words used in the regulation, despite EmCare’s argument that the meaning is clear. The court distinguishes the cases EmCare cites, noting that the cases asked specific yes-no questions: whether a regulation allowed a certain practice or not. Here, though, the yes-no question of whether the exemption can be asserted against PAs and NPs still does not get at the underlying question of whether PAs and NPs are “professionals,” a term not defined in the regulations or statute. The court notes that, although it routinely looks to dictionaries for the ordinary meaning of words, it may also look at similar statutes using similar or identical language. The court also notes that it is strongly persuasive that none of the states at issue licenses PAs and NPs to practice medicine, and practicing medicine is not part of their job description. Furthermore, registered nurses, who are licensed and who do practice the art or science of “preserving health and treating disease,” are not treated as professionals by the DOL regulations, either. “This evidence does not suggest that �541.3(e) unambiguously excludes PA’s and NP’s, but it is sufficient for us to find that �541.3(e) is ambiguous and to look to DOL’s interpretive statements for additional guidance.” The court finds the DOL has repeatedly categorized NPs under the same heading as registered nurses. On the other hand, the court also notices that the DOL has issued regulations that list PAs alongside nurses and technologists as “learned professionals” who satisfy the “duty” requirement of the professional exemption. The court, however, finds the most specific reference to PAs and NPs comes from a 1974 DOL opinion letter and a 1994 “Field Operations Handbook.” Both state that PAs need to be compensated on a salary basis, if they are to be included within the professional exemption. Finally, the DOL’s own brief unambiguously adopts the position that PAs and NPs do not qualify for the professional exemption. There is no reason to doubt the DOL’s good faith in this instance, the court finds. It is also not a “plainly erroneous or inconsistent” interpretation of the regulation. Consequently, deference is appropriate. “Congress has entrusted the DOL with the task of defining who is eligible for the professional exemption to the FLSA. The agency has determined that a necessary indicator of professional status in most cases is salaried compensation, with the limited exception of the traditional i.e., well-established and easily identifiable professions of law, medicine, and teaching. Absent a plain statement in a formal rule that NP’s and PA’s fall within this exception, the courts must choose between deciding the question de novo and deferring to the agency’s less formal, but more specific, interpretive statements. . . . [D]eference better accords with Congress’s intent and the agency’s comparative expertise. OPINION:Smith, J.; King, Smith and Benavides, JJ.

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