This is a supplement to an article released on January 15, 2007. That article discussed how more stringent Texas licensing requirements for funeral directors and embalmers are needed for funeral directors and embalmers to qualify as a “learned professional” exempt from the FLSA’s overtime pay requirements.
In 2011, a district court in the Western District of New York held that a licensed funeral director in New York was an exempt “learned professional” not entitled to overtime compensation under the FLSA even though New York only requires a two-year degree to become a licensed funeral director. Rowe v. Olthof Funeral Home, Inc., No. 10-CV-6220T, 2011 WL 4899970 (W.D.N.Y. Oct. 13, 2011). While acknowledging that 29 C.F.R. § 541.301(e)(9) provides that licensed funeral directors who are licensed by and working in a state that requires a four-year degree “generally” meet the duties requirements for the learned professional exemption, the court found that this subsection did not preclude a finding that a funeral director with a two-year degree could be an exempt “learned professional.” Id. at *3. The court reached this decision because it found New York’s licensing procedures (which requires two years of “focused study in an accredited mortuary science curriculum, two exams, and a one-year residency program) to be rigorous and constitutes a “prolonged course of specialized intellectual instruction” under section 541.301(a)(3). Id. at *5 (noting that other occupations that require a two-year degree, such as registered nurses, are FLSA-exempt professionals).
While an argument may be made that the Texas licensing requirements are similar to those in New York and funeral directors in Texas should be FLSA-exempt professionals, a court is likely to find that the Texas licensing requirements are less rigorous. Whereas New York specifically requires funeral directors seeking licensure to complete a minimum of 60 semester credits or 90 quarter credits in an accredited mortuary science curriculum, Texas only requires a funeral director to graduate from an accredited school or college of mortuary science. The educational requirement in Texas can be satisfied by obtaining a certificate after one year of study. Moreover, the Rowe court’s holding would likely only apply to funeral directors in the Western District of New York.
Therefore, Texas licensed funeral directors and embalmers will continue to be non-exempt from the overtime pay requirements until the legislature imposes more stringent licensure requirements.
Jennifer Buchanan is a graduate of Vanderbilt University and University of Houston Law Center and joined Sheehy, Ware & Pappas, P.C. in 2014. She is the firm’s newest member of the death-care practice group.
 Compare N.Y. Pub. Health Law § 3421(1)(b), with Tex. Occ. Code § 651.253(a)(3).