The Fair Labor Standards Act (FLSA) is the primary federal statute dealing with minimum wages, overtime pay, and related issues. Under Section 13(a)(1) of the act, employers of persons employed "in a bona fide executive, administrative, or professional capacity" (EAP employees) are freed from the act's otherwise applicable minimum wage and overtime pay requirements. Employees classified as executive, administrative or professional are not protected by the act's regular wage and hour provisions. The Section 13(a)(1) exemption was written into the initial version of the FLSA in 1938 and, in one form or another, has continued to be a part of the statute. On March 31, 2003, the Wage and Hour Division, United States Department of Labor (DOL), proposed revision of the regulations (29 CFR 541) that define the terms executive, administrative and professional and govern implementation of the FLSA exemption. When the opportunity for public comment closed on June 30, 2003, the Department had received in excess of 75,000 communications and the issue had become a focus of intense debate, both with the public and in Congress. When a final rule was issued on April 23, 2004, debate continued. Within the weeks that followed, the new regulation was the subject of various congressional hearings and had been subject to floor action both in the Senate and in the House of Representatives. In late August 2004, the new rule was implemented. Public debate would continue throughout the fall, but without avail. This report sketches the evolution of the Section 13(a)(1) since 1938, noting the occasions on which the regulations governing the exemption (29 CFR 541) were modified. It identifies entries in the Federal Register (with other related sources) to which one might refer for the precise language of the evolving regulation. It does not trace each nuance of change as each modification to the definitions of executive, administrative and professional was added. Following a year of hearings and debate, Congress approved the federal wage and hour law (the Fair Labor Standards Act) in June 1938. The act provided, inter alia , for minimum wages (Section 6) and overtime pay (Section 7) for covered workers. Neither then nor now were all workers covered under the protections of the statute; but, in Section 13, Congress wrote into the act certain specific exemptions. Among them was the following: The provisions of sections 6 and 7 shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional ... capacity ... (as such terms are defined and delimited by regulations of the Administrator....) The act went on to create within the Department of Labor a sub-unit—the Wage and Hour Division—to be presided over by an Administrator to be "appointed by the President with the advice and consent of the Senate." The act was to become effective October 24, 1938, which allowed four months in which to establish an administrative structure, prepare interpretive materials, and be ready to enforce compliance with the new federal wage/hour standards—of which the EAP exemption was only one small portion. As Administrator, President Franklin Roosevelt selected Elmer F. Andrews, Industrial Commissioner for the state of New York. By mid-August of 1938, Andrews was on duty at the Department and had begun to assemble his staff. Beyond the statutory language (that bona fide executive, administrative and professional employees were to be exempt), Congress provided the new Administrator with little guidance. The concepts—bona fide executive, administrative and professional—were not defined. No reference was made, in the statute, to salaried as opposed to hourly paid workers; nor was any distinction made between manual and non-manual work. While Andrews could draw from the experience of the National Recovery Administration (1933-1935) in which more highly paid workers appear to have been excluded from wage and hour standards, he was under no obligation to do so. He was free to structure the exemption as he chose; but, given the numerous other tasks before him, he may not have been under any immediate pressure to deal with the EAP exemption. During a presentation before the Southern States Industrial Council in Birmingham, Alabama, September 29, 1938, Andrews was asked if he had taken any action with respect to Section 13(a)(1), to which he responded: "No. I have had that in mind more than anything else, and we will have that for you within the next week or two." He discussed his experience with the issue in New York state—pointing out how some employers had attempted to circumvent the state law by too broadly defining their workforce as executive or administrative or professional. "... [I]t is very difficult to say ... where a worker leaves off and a professional or executive begins." During the fall of 1938, Andrews, with a draft in hand, "called a conference of representatives of industry and labor to ascertain their views" on the definition of the several terms. On October 19, 1938, five days before the act was to go into effect, the Department announced that the Administrator, "in consultation with the legal branch of the division," had reached a determination. The terms executive and administrative would have a single definition. Among other elements, they were to have the "primary duty" of "management of the establishment" and do "no substantial amount of work of the same nature as that performed by nonexempt employees of the employer." The concept of professional was to be characterized by work that was "predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work" and was to involve "discretion and judgment both as to the manner and time of performance, as opposed to work subject to active direction and supervision." The education of a professional was to be based upon "a specially organized body of knowledge as distinguished from a general academic education and from an apprenticeship" or other routine training. He (or she) was not to do any "substantial amount of work of the same nature as that performed by non-exempt employees of the employer." The entire regulation, including introductory comments by Andrews, took up two columns in the Federal Register . But, much of the language, at least in skeletal form, would remain central to the EAP regulation and to the proposed rule of March 31, 2003. Whatever the understanding may have been, the concept of salaried was not specified—other than that an executive or administrator would need to earn "not less than $30" for a work week. No earnings threshold was set for a professional. In setting forth the Section 13(a)(1) regulations, Andrews had affirmed that the machinery, within the Department, was in place for contesting any aspect of the definitions that were deemed flawed, inviting citizen input. But, apparently protests were not forthcoming except, possibly, with respect to the concept of professional. Addressing the Associated Industries of New York meeting at Syracuse in late 1938, Rufus Poole, Assistant General Counsel for the Wage and Hour Division, asked: Have you ever tried to define a professional? That is hard enough, but engaged in a "bona fide professional capacity" is even harder. The dictionaries do not give us the answer. They indicate that sometimes the word "professional" is used to mean a person engaged in one of the learned professions—that is medicine, law and the ministry. Then, the dictionaries talk about education and skill and even about one who engages in sports for money. We had to define this term so that employers and employees could use it.... The concept of professional, he stated, was the "only one that has been seriously questioned to date" and, even here, DOL found that critics were not able to suggest "a better definition." Poole added: "There is a statutory duty on the Administrator to promulgate a definition. So we put out the best definition we could." Gradually, employers would voice concern with the Section 13(a)(1) structure: particularly with respect to "certain high-salaried employees." "As the statute now stands," Andrews stated, "these persons are covered unless they fall within the definition of employees engaged in an executive, administrative, or professional capacity." Some employers had argued, Andrews reported, "that certain employees who do not fall within these categories ... are, nevertheless, paid rather high salaries and are engaged steadily in work which is of a very responsible nature." But: "The number of such employees is not know[n] nor is the extent to which the provisions of Section 7 of the act may impose changes in the personnel policies and the administrative practices of business enterprises." Andrews concluded: "... any line of demarcation placing these high-salaried employees into a separate category for special treatment would have to be very carefully drawn...." Meanwhile, legislation was introduced that would variously have modified Section 13(a)(1) especially with respect to treatment of professionals or higher wage employees or both, though this does not appear to have been a high priority, neither with DOL nor with Congress. Andrews indicated his support for "certain clarifying amendments" to the FLSA but opposed the measure reported from the House Labor Committee (H.R. 5435 of the 76 th Congress) as "A Bill to Lower Wages and Establish Longer Hours of Work." The legislation was not adopted. During the fall of 1939, Andrews left the Department and was succeeded as Administrator by Colonel Philip B. Fleming, formerly of the Army Corps of Engineers. Other changes in personnel of the Wage and Hour Division followed—as would shifts in administrative policy. In mid-March 1940 (when the regulation governing the EAP exemption, 29 CFR 541, was just under 18 months old), Fleming announced a hearing on proposed changes to the regulation. Apparently anticipating a relatively low-key review (since the EAP exemption appears to have sparked little controversy), the hearing was projected as a one-day affair (April 10) with the Division's Harold Stein designated to preside.