Funeral Services: The Industry, Its Workforce, and Labor Standards

CRS Report for Congress
Funeral Services: The Industry,
Its Workforce, and Labor Standards
Updated February 9, 2005
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Funeral Services: The Industry,
Its Workforce, and Labor Standards
Under Section 13(a)(1) of the Fair Labor Standards Act (FLSA), persons who
are employed in a bona fide “executive, administrative, or professional” capacity may
be exempt from minimum wage and overtime pay protection if they meet certain
criteria set forth by the Department of Labor (DOL). Such criteria can be difficult
to meet, which some argue is the nature of an exemption. During recent years, some
confusion — and litigation — has developed about the application of this exemption
to licensed funeral directors and embalmers. In order to eliminate any doubt about
applicability, legislation has been proposed that would bypass Section 13(a)(1) and
declare “any employee employed as a licensed funeral director or a licensed
embalmer” to be exempt by definition — i.e., a simple categorical exemption.
During the past two decades, there have been major changes in the funeral
industry. It has moved from a group of “mom-and-pop” enterprises to domination
by a series of mega-firms, a process known in the industry as consolidation. With
corporate consolidation have come economies of scale: bulk buying, centralized use
of facilities and staff by clusters of establishments under a single ownership, new
marketing arrangements, etc. Other changes have affected the industry as well: e.g.,
a shift from in-ground burial to cremation and the advent of venders offering discount
caskets and related merchandise. These changes have given rise to a corporate
culture — and to increased visibility of the industry in the world of policy.
Similarly, there have been shifts in the labor force. Where funeral directing and
embalming had been largely a domain of white males, it has become increasingly
open to women and minorities. Consolidation appears to have led to a less personal
pattern of labor-management relations than in the past. Societal change has
suggested the need for a better-educated funeral industry workforce — for reasons
of image and considerations of skill — and, in turn, this has led to efforts to enhance
general licensing standards and to make them consistent throughout the nation.
(Currently, licensing requirements are left to the determination of the individual
states and the District of Columbia.) But, if funeral directors and embalmers are
highly skilled, are they professional as DOL defines the concept for Section 13(a)(1)
purposes? Should they be covered by FLSA wage and hour protections? Or, if not,
why should they be excluded from such protection?
Legislation concerning the status of funeral directors (and, subsequently,
embalmers) has been introduced in several Congresses — beginning with the 105th
— but none of them has been enacted. On March 2003, the Department of Labor
proposed a new regulation [Section 13(a)(1)] dealing with executives, administrators
and professionals. The new regulation could have the effect, desired by the industry,
of affecting the status of funeral directors and embalmers and of removing them from
overtime pay status. This report will be updated as events require.

Most Recent Developments..........................................1
Context of the Issue for the 107th Congress..............................1
The Regulatory Context.............................................4
The Funeral Industry...............................................5
The Culture of an Industry.......................................7
Structure and Strategy..........................................8
Entry of Large Business.....................................9
Maintaining a Local Image.................................10
Economic Change............................................10
Economies of Scale.......................................10
The Trend Toward Cremation...............................11
Casket Competition.......................................13
A “Shaking Out” of the Industry.................................14
A Presence in Washington......................................15
The Workforce...................................................16
General Characteristics........................................16
What Do the Numbers Suggest?.............................16
A Common Body of Duties?................................17
An Employee, Not Necessarily an Owner/Manager..............17
Wages and Hours.........................................18
Basically Non-Union?.....................................19
Changing Demographics...................................19
Profession or Craft?...........................................20
How the Industry Views Itself...............................21
The Issue of Education.....................................22
The Apprenticeship Requirement............................24
Licensure ...............................................25
Some Policy Considerations........................................26
In the 108th Congress and Beyond....................................29
Amendment of the FLSA.......................................29
Altering Department of Labor Regulations.........................29
List of Tables
Table 1. The United States Deathcare Industry: Major Firms, ca. 1995-1996...8
Table 2. U.S. Funeral Service Education Graduates 1976-1995.............20
Table 3. Funeral Service: Education and Related Requirements............31

Funeral Services: The Industry,
Its Workforce, and Labor Standards
Most Recent Developments
Should workers employed in the funeral industry (licensed funeral directors and
embalmers) be covered by the minimum wage and overtime pay protections of the
Fair Labor Standards Act (FLSA)? If not, what might justify exempting these
workers from such protections? Should such an exemption be specific (categorical),
dealing narrowly with funeral directors and embalmers, or should it flow from more
general criteria set forth by Congress or by the Department of Labor (DOL)? How
have such wage/hour concerns been impacted by social and cultural change during
recent years and by structural and economic shifts within the deathcare industry?
Although there may be some difference of opinion, public policy embodied
through the FLSA has been to protect such workers in their overtime rights. In
general, funeral directors would seem to have more in common with retail sales.
Embalmers, conversely, would seem to have a more professional status; but, even so,
they have not, traditionally, satisfied requirements set down by the Department.
That policy has been of concern to the industry (which would like to see the
definition altered) and has resulted in recent litigation. It also became the focus ofth
legislative proposals in 105 Congress and beyond. Aside from the regulatory
context, per se, this paper reviews the structure of the deathcare industry, the
character of its workforce, and the potential impact of the changes in wage/hour
Context of the Issue for the 107th Congress
Death does not occur on a fixed schedule. Thus, by the nature of their work,
funeral service employees are often called upon to work irregular hours and to be
available upon demand. But the funeral industry is not entirely unique in that respect.
Utilities workers, public safety personnel, medical staff, some construction crews,
journalists, etc., work under similar considerations of time. Their work requires a
measure of flexibility.
When enacting the FLSA (the primary federal statute dealing with minimum
wages, overtime pay, and related issues), Congress sought to limit the number of
hours worked to a reasonable number: i.e., not more than 40 per week. However,
cognizant of work patterns within particular industries, it made the act flexible. For
example, although the act requires that 1½ times a worker’s regular rate of pay (time-
and-a-half) be paid for hours worked in excess of 40 per week, there is no daily
restriction. Thus, a worker can be assigned to work any combination of hours —

days, nights, a split shift, compressed or flexible scheduling — so long as the total
hours worked per week do not exceed 40. Even then, overtime rates need to be paid
only for those hours worked in excess of 40 per week.1 At the same time, Congress
confined FLSA wage standards to a minimal requirement: a wage floor.
Existing FLSA workhours and wage requirements have long been a concern of
employers — including those in the funeral industry.2 Generalized concerns evolved
into litigation when, in 1998, the U.S. District Court for the Western District of
Michigan (Rutlin v. Prime Succession, Inc.) examined the wage/hour treatment of a
Michigan man engaged as a funeral director and embalmer. The case was
subsequently appealed to the U.S. Court of Appeals for the Sixth Circuit, and a
decision was rendered in July 2000 (Rutlin v. Prime Succession Inc., 6th Cir., No. 99-

1042, July 20, 2000). Under Section 13(a)(1) of the act, certain bona fide “executive,

administrative, or professional” employees (including licensed funeral directors and
embalmers) may be exempt from FLSA wage and hour requirements if they meet
DOL standards.
Exemption, however, is not automatic, nor is it universal: the qualifying criteria
are technical. In general, DOL has regarded funeral directors and embalmers as
technical or as retail/service employees, not as professionals. In the Rutlin case, the
Court of Appeals found that the plaintiff was a professional even though, in this
instance, he performed additional duties that did not require professional training.
It held that those duties “that were of principal importance to Prime Succession were
those related to directing funerals and embalming bodies.” The case also involved
the mode of payment (salaried or hourly) and payment for periods of time when
Rutlin was off duty but on call. Here the Court of Appeals ruled that given the
particular circumstances in this case, the plaintiff should have been compensated for
off duty but on call hours (while paid on an hourly basis).3 Whether other cases,
given factual variations, would result in a similar interpretation may be problematic.4
In 1998, in order to bring clarity to the issue, a legislative solution was
proposed. The legislation, had it been adopted, would have exempted “any employee
employed as a licensed funeral director” from minimum wage and overtime pay
protection under the FLSA.5 Senator Lauch Faircloth, when presenting the proposal,
pointed to “the economic hardship” and “financial strain” such requirements place

1 There are a variety of options open to employers. See 29 C.F.R. Part 778. The stated
motivations of Congress in this respect have been mixed: in part, economic, but social as well.
2 The American Funeral Director, Dec. 1994, p. 62. See also testimony of Howard Raether,
representing the National Funeral Directors Association, in U.S. Congress, Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, Fair Labor Standardsndst
Amendments of 1971, hearings, 92 Cong., 1 sess., Sept. 24, 27, and 30, 1971 (Washington:
GPO, 1971), pp. 1672-1676.
3 See Rutlin v. Prime Succession Inc., 220 F.3d 737 (6th Cir.2000), reversing 38 F. Supp. 2d

194 (W.D. Mich. 1998).

4 Judge Karen Nelson Moore of the Sixth Circuit Court dissented in the Rutlin case, finding
for Rutlin rather than Prime Succession.
5 See S. 2405 (Faircloth) and H.R. 4540 (Graham), both of the 105th Congress.

on small business owners who have “to allocate revenues for that purpose” — i.e.,
to pay their employees at least the minimum wage and overtime pay for hours
worked in excess of 40 per week.6 No action was taken on this legislation during the

105th Congress.

Early in the 106th Congress (following the decision in the Rutlin case), new
legislation was introduced: H.R. 793 (Graham). Somewhat expanded, it proposed
elimination of minimum wage and overtime pay protection both for licensed funeral
directors and licensed embalmers.7 No action was immediately taken on H.R. 793,
but its language was incorporated within H.R. 3081 (Lazio) — tax legislation that
would also raise the federal minimum wage and make certain other changes in the
FLSA. On January 28, 2000, the Committee on Education and the Workforce was
discharged from further responsibility for the measure. No hearing had been held on
the Graham (now, Lazio) funeral industry provision. On March 9, 2000, H.R. 3081
was passed by the House and, subsequently, dispatched to the Senate. But when the

106th Congress came to an end, neither bill had been approved.

Early in the 107th Congress, new legislation (H.R. 546, Quinn; and H.R. 648,
Graham) was introduced that would have exempted employers of licensed funeral
directors and embalmers from the minimum wage and overtime pay requirements of
the FLSA. The bills were referred to the Committee on Education and the Workforce
— and the tax provisions of H.R. 546 to the Committee on Ways and Means.
Neither bill was enacted. In the 108th Congress, two new bills of similar intent were
introduced — H.R. 2065 (Tiberi) and S. 292 (Graham of South Carolina) — but, like
their predecessors, neither was approved by the Congress.
The purpose of the proposed funeral industry exemption is fairly direct. It
would allow funeral industry employers to avoid having to pay their employees
(those employed as licensed funeral directors and/or licensed embalmers) the FLSA
minimum wage and time-and-a-half for overtime hours worked. That result could
be achieved through at least two routes. First. Under the FLSA’s Section 13(a)(1),
bona fide executive, administrative or professional employees may be exempt from
wage and hour protection if they meet certain tests (discussed below) established by
DOL. Congress could modify Section 13(a)(1) so that licensed funeral directors and
embalmers would qualify as exempt — presumably as professionals (but possibly,
as administrative or executive employees) — were it demonstrated that they actually
were professional for Section 13(a)(1) purposes: that is, highly educated and highly
paid.8 However, it appears that many could not meet that standard — often being
low-wage entry-level employees. (See discussion below.) Second. Congress could
write into the statute a categorical exemption by declaring that licensed funeral
directors and embalmers are, by definition, exempt from minimum wage and

6 Congressional Record, July 31, 1998, p. S9562.
7 H.R. 793, introduced by Representative Lindsey Graham (R-SC) on Feb. 23, 1999, was
referred to the House Committee on Education and the Workforce and, later, to the
Subcommittee on Workforce Protections.
8 For an example of this approach, see CRS Report RL30537, Computer Services Personnel:
Overtime Pay Under the Fair Labor Standards Act, by William G. Whittaker.

overtime pay protection.9 The latter course (categorical exemption) was the approach
that has been proposed in the past several Congresses. This report will examine both
the professional and categorical approaches and their policy implications.
The Regulatory Context
Under the FLSA, Section 6 specifies the federal minimum wage that must be
paid to covered employees. Section 7 requires that covered workers must be paid 1½
times their “regular rate” of pay for hours worked in excess of 40 per week. Then,
in Section 13, Congress wrote into the act a series of exemptions from Section 6 or
Section 7 or from both. For example, Section 13(a)(1) provides:
(a) The provisions of section 206 ... and section 207 of this title shall not apply
with respect to —
(1) any employee employed in a bona fide executive, administrative, or
professional capacity ....
The definition of “bona fide” and of “executive, administrative, or professional” has
been left by Congress to the Secretary of Labor to be established through the
rulemaking process.10 In the case of licensed funeral directors and licensed
embalmers, the issue has focused upon the concept of professional — though such
workers might also be exempt as executive or administrative staff.
Speaking generally, to be exempt under Section 13(a)(1), two criteria must be
met. First, the worker must be paid a salary above a threshold established by the
Secretary: the salary test. Second, the worker must be engaged in duties that would
meet a standard of a professional (the duties test) as specified by the Secretary.
Through the years, employers have often sought to expand this exemption
(Section 13(a)(1)) in order to avoid payment of overtime rates: workers, conversely,
have tended to resist expansion of the exemption. The several tests are imposed so
that a title alone cannot establish the exemption. For example, a “professional” must
actually be a professional in order to be exempt: the designation and exemption
being rooted, therefore, both in a duties test (that he does the work of a professional)
and in a salary test (that he is paid a professional’s wage). The tests, however, have
been impacted by changes in educational and training practices and by fluctuations
in the economy.11

9 There is ample precedent for excluding specific categories of workers from FLSA
protections. Such exemptions may be justified either as economic policy or as legislative
accommodation and compromise — or both.
10 In the U.S. code, the Sections are 206, 207, and 213 respectively. Wage and hour policy
is also a concern of the states and the latter may have more rigid standards than the federal
government. Where there is overlapping coverage, the higher standard normally prevails.
11 The Section 13(a)(1) designation (the EAP exemption) needs to be approached with some
caution. See, for example James A. Prozzi, “Overtime Pay and the Managerial Employee:
Still a ‘Twilight Zone of Uncertainty,’” in Labor Law Journal, Mar. 1990, pp. 178-182; and

In attempting to distinguish a professional person from a worker who is
technically trained and highly skilled, the Department established certain criteria of
assessment. For example, the work of a professional must require:
... knowledge of an advance[d] type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction and study,
as distinguished from a general academic education and from an apprenticeship,
and from training in the performance of routine mental, manual, or physical
processes ....
DOL has emphasized the “original and creative character” of such work and the
“exercise of discretion and judgment” in its performance. It must be predominantly
what the worker actually does: i.e., the major portion of his or her work.12
In the Rutlin case the Circuit Court, in the absence of a categorical exemption,
conducted its review under the old Section 13(a)(1).13 It held that Rutlin, as a
licensed funeral director and embalmer in Michigan, was a professional and that,
although he had spent much of his time on non-professional duties, he met the duties
time test because of the relatively greater importance of the work he performed
within his professional field. Each case, of course, is different. And, even here,
Judge Moore of the Circuit Court filed a lengthy and detailed dissenting opinion. It
is not clear how other courts might view the several tests.
The Funeral Industry
During recent years, the funeral industry has undergone stark change, both in its
structure and economic orientation. DOL regulations and the ambiguities of the
Rutlin case aside, there are forces within the industry that could encourage efforts to
secure exemption from FLSA minimum wage and overtime pay requirements. The
following section discusses the nature and implications of these changes.
Funeral services in America are, today, profitable and socially important.
Estimates vary, depending upon what is counted and how a tally is made, but The
Economist points to a “$15 billion a year funeral industry.”14 The deathcare industry

11 (...continued)
U.S. General Accounting Office, Fair Labor Standards Act: White-Collar Exemptions in
the Modern Work Place, report to the Subcommittee on Workforce Protections, Committee
on Education and the Workforce, U.S. House of Representatives, GAO/HEHS-99-164, Sept.

1999 (Washington: GPO, 1999).

12 See 29 C.F.R. § 541.3(a) forward. The rule has changed somewhat in the new Section 13
(a)(1) standard discussed below; but the impact of that change may need to await further
13 Although the court also took into account Michigan law, the focus here is upon the federal
statute and its supporting regulations.
14 “Barbarians at the Pearly Gates,” The Economist, Sept. 28, 1996, p. 79. Precise estimates
are difficult, involving complex disaggregation of data — and of holdings. See also Gary

is usually divided into three components: “(1) ceremony and tribute, usually in the
form of a funeral or memorial service, (2) disposition of remains, either through
burial or cremation, and (3) memorialization, through monuments, markers or
inscriptions.”15 Funeral arrangements are made in a variety of ways but, often, they
are prepaid in order to be certain the wishes of the deceased are complied with and
to ease the burden on survivors: a concept known as “preneed.” In 1994, about
760,000 individuals prearranged their funerals — “spending over $3.4 billion in the
For a little over a decade, a primary theme within the funeral industry has been
consolidation. Where most deathcare establishments had been relatively small and
locally owned (or, at most, small chains), the 1990s saw a rapid growth of mega-
corporations with nationwide and international holdings. There are estimated to be
about 23,000 funeral homes and 9,500 cemeteries in the United States. In the late
1990s, the consolidators (the industry term for the mega-corporations) were said to
control “about 25 percent” of industry revenue dollars.17 At mid-decade, about 85%
of industry facilities were thought to be “family-owned.”18 Percentages, however,
may be difficult to assess since the consolidators “operate seemingly independent
funeral businesses under one parent company.”19 In any case, the percentage may be
of little importance. “While the independents still account for the majority of firms
in number of operating units,” states Tom Fisher, columnist for Mortuary Magazine
and a close observer of the industry, “their power — always fragmented, always
fractured by suspicion — is gone.”20

14 (...continued)
McWilliams, and William G. Symonds, “Dustup in ‘Death Services’,” Business Week, Oct.

7, 1996, p. 40. (Hereafter cited as McWilliams and Symonds, Dustup in ‘Death Services’.)

15 The U.S. Funeral Services Industry: A Marketing, Competitive and Operational Analysis
(Tampa: Marketdata Enterprises, Inc., 1997), p. 8. (Hereafter cited as Marketdata, The U.S.
Funeral Services Industry). See also Arthur Phaneuf, “Public Players in a Private Industry,”
The American Funeral Director, Mar. 1995, p. 46.
16 Arthur Phaneuf, “How Big a Market?,” The American Funeral Director, Sept. 1995, p.

30. (Hereafter cited as Phaneuf, How Big a Market?).

17 Susan Little, “Taking Stock in Death Care Industry: Present and Future,” The American
Funeral Director, Jan. 1999, p. 23. (Hereafter cited as Little, Taking Stock in Death Care
18 Hank Cox, “While the Grim Reaper Toils, Corporations Reap Big Profits,” Insight on the
News, Dec. 30, 1996, pp. 42-43. (Hereafter cited as Cox, While the Grim Reaper Toils). For
clarity of meaning, such estimates require further definition which is not immediately
19 Phaneuf, How Big a Market?, p. 27.
20 Tom Fisher, “The Culture of Contemporary Funeral Service Corporations,” Mortuary
Management, Apr. 1996, p. 14. (Hereafter cited as Fisher, The Culture of Contemporary
Funeral Service Corporations.).

The Culture of an Industry
The traditional mode of doing business in the funeral industry has also
changed.21 “Whatever the ‘American way of death’ was in 1960,” writes analyst
Richard Gill, “it is obviously becoming something radically different as we head into
the twenty-first century.”22 The industry, some argue, was in trouble as the 1990s
dawned. Business had not accommodated to “societal changes.”23 Inefficiencies had
crept in; profit margins had shrunk. In some cases, inheritors of funeral homes were
unenthusiastic about the mortuary craft; in other cases, family members had been
added to the staff — perhaps somewhat gratuitously.24
The process of consolidation may have been set in motion by Robert Waltrip of
Houston. Having inherited the family business, he began to expand through
acquisition of other establishments until, by the mid-1990s, organized as Service
Corporation International (SCI), he reportedly operated 2,882 funeral service
locations, 345 cemeteries and 150 crematoria. Gradually, other consolidators
followed suit.25 (See Table 1).
Increasing consolidation brought with it cultural change within the industry and,
perhaps, some sense of loss. In contrast to the small community-oriented family
operations, some argue, the large publicly owned companies are focused upon return26
on investment.
The president of the Associated Independent Family Funeral Homes of Maine
stated: “The corporate philosophy is to make the most for their stockholders placing
their values on Wall Street.” This is very different, in his opinion, from the old,
independent firms, whose “values are on the mainstreet of the communities in which27
they live.” “Too often,” opined Ron Hast of Mortuary Management, “a demanding,
intense focus on Wall Street numbers makes it clear that the most important factor28
driving the leaders (and followers) of the consolidators’ program is MONEY.” But,

21 The industry has changed, markedly, since the late 1990s and early into the present
century. The overview, presented here, addresses the realities of a period — about 1999 to
2000. There may have been changes within the industry: among the players, certainly, and
in terms of major stakeholders.
22 Richard T. Gill, “Whatever Happened to the American Way of Death?,” Public Interest,
spring 1996, p. 108.
23 Fisher, The Culture of Contemporary Funeral Service Corporations, p. 15.
24 Christopher Palmeri, “Funeral Prospects,” Forbes, Sept. 11, 1995, p. 46. (Hereafter cited
as Palmeri, Funeral Prospects).
25 See Robert Bryce, “Merchant of Death,” Texas Monthly, June 1996, pp. 58-62. (Hereafter
cited as Bryce, Merchant of Death); and Marketdata, The U.S. Funeral Services Industry,
p. 40.
26 Fisher, The Culture of Contemporary Funeral Service Corporations, p. 14.
27 Fernald is quoted in The Bangor Daily News, Apr. 21, 2000, no page number provided.
28 Ron Hast, Waltrip, Loewen, Stewart, “Achievement, Perspective, Vision,” Mortuary

realistically, the world of business is moved by competition and profitability.
“Profits,” observed Bob Adkins of the Southeastern Funeral Directors Service, “are
the very foundation of our nation.”29
Table 1. The United States Deathcare Industry:
Major Firms, ca. 1995-1996
Number of
funeralNumber ofNumber ofTotal
Firmhomescrematoriacemeteries employees
Service Corporation2,88215034529,061
International (Texas)
The Loewen Group, Inc.950 — 28913,000
(British Columbia)*
Stewart Enterprises, Inc.308 — 121 —
Source: Compiled from data contained in The U.S. Funeral Services Industry (Tampa: Marketdata
Enterprises, Inc., 1997). Movement within the industry — consolidations, divestitures — has been
so rapid in recent years that reliable data are difficult to secure, especially so since 1996.
* Although The Loewen Group, Inc., is based in British Columbia, the bulk of its business is
conducted within the United States. Each of these firms (the three largest in 1996) operate in an
international context — especially so, SCI.
The altered structure of the industry may not be immediately apparent to the
public. “Outwardly,” reported Robin Fields for The Los Angeles Times, “acquired
homes remained unchanged, the names on their signs comfortingly constant. Inside,
however, old-fashioned family-run shops became corporate units.”30 The change —
and the challenge — has been multifaceted.
Structure and Strategy
As with other industries, funeral services establishments are of varied character,
in some measure reflecting the tone of the communities in which they are located.

28 (...continued)
Management, Mar. 1998, pp. 6-8. Emphasis in original.
29 Adkins is quoted in “Profitability Is Focus of Palmetto Conclave,” The American Funeral
Director, Aug. 1992, p. 24.
30 Robin Fields, “Grim Time for Funeral Firms,” The Los Angeles Times, Oct. 24, 1999, Part
C, p. 1. Intra-corporate relationship may vary from one acquisition to another. (Hereafter
cited as Fields, Grim Time for Funeral Firms).

However, the “new economic realities” flowing from “acquisition and consolidation”
have “forced some independents to change the way they did business.”31
Entry of Large Business. In the deathcare industry, consolidation may be
the dominant trend of the 1990s. As the “major players” grew through acquisition,
many “small family-owned funeral homes” found themselves compelled to confront
“marketing plans, multiple facilities, and cost saving shared resources” utilized by
the consolidators.32 Competitive pressures increased, notably from “the big three”
of the industry: the Houston-based Service Corporation International (SCI), the New
Orleans-based Stewart Enterprises, and the Loewen Group based in Vancouver but33
operating primarily in the States. Others would join the race.
Growth had been rapid. For example, with the aid of venture capital, Tom
Johnson, once associated with Pierce Brothers (funeral homes) in California, struck
out on his own in the early 1990s and, in “slightly over four years,” he had “acquired
over 160 operating units” with a market value, by some estimates, in the $295 million
range. In another case, Stewart, a family firm started in 1910, went public in 1991.
Between 1991 and 1995, it “acquired 116 funeral homes and 79 cemeteries;” in fiscal
1996, it bought another “134 funeral homes and 15 cemeteries in 22 international and
domestic markets.” Other firms progressed similarly. The Loewen Group went
public in 1987: a firm with 47 funeral homes and one cemetery. Within a decade,
it could boast “950 funeral homes and 289 cemeteries throughout Canada, the United
States and Puerto Rico.” Service Corporation International, “the world’s largest
operator of funeral homes, cemeteries, and crematoria,” started with a single
mortuary in 1951. It went public in 1969. In 1993, SCI expanded its operation into
Australia and, during the same period, acquired properties in the United Kingdom
where it quickly became the largest funeral services provider. In 1995, it “purchased
the funeral operations of” the French conglomerate, Lyonnaise des Eaux.34
Still, the industry has sought to retain its prior image. John Fitch, Washington
representative for the National Funeral Directors Association, depicts “funeral
directors as human beings and neighbors, and funeral homes as one of the last of the
true family owned, small businesses left in America,” and stresses “the need to
recognize all these things when policy is being made or considered.”35

31 Patrick D. Patullo, “1998: The Year In Review,” The American Funeral Director, Jan.

1999, p. 20.

32 Marketdata, The U.S. Funeral Services Industry, p. 10.
33 The Chicago Tribune, Sept. 6, 1998, p. C2.
34 See Tom Fisher, “The Saga of Tom Johnson and His Prime Succession Company,”
Mortuary Management, July/Aug. 1996, p. 10; Marketdata, The U.S. Funeral Services
Industry, pp. 36, 40 and 43; Bryce, Merchant of Death, pp. 58, 60, and 61; and The Wall
Street Journal, Sept. 18, 1996, p. A6. In 1996, SCI sought to acquire Loewen — an offer
that was rejected. SCI was said to have interests in Italy, Singapore and the Czech Republic.
See Palmeri, Funeral Prospects, pp. 45-46.
35 Fitch is quoted in “1998 in Review,” The Director, Dec. 1998, pp. 26 and 28.

Maintaining a Local Image. Although “[s]weeping consolidation is taking
place in this historically family-held profession,” states William Barrett of SCI, “...
you really can’t see it.” It’s a calculated strategy, he suggests. “... when we buy a
funeral home, we don’t make any changes that are visible to the public.”36 Goodwill
(“an ongoing, satisfied clientele”) “translates into substantial intangible capital” and
is a “component of any funeral home’s overall asset value.”37 Industry analyst Dale
Rollings advises that “[p]eople like to deal with those with whom they are familiar”
and, therefore, in a consolidation, “maintaining a visibility and participation by prior38
ownership and management” is important.
Retaining a former owner to deal with the public may help preserve the good
will “that family-owned independents have earned in their communities over many
years.” However, it may also project an erroneous impression that the firm is a mom-
and-pop operation and should be treated as a small business in terms of public39
policy. The practice tends to focus consumer attention upon the traditional and the
familiar. 40
Economic Change
It has been said that consolidation “has revolutionized” the deathcare business
and “forced an unusually fragmented industry toward massive rationalization.”
Concern with profit maximization has led, as well, to “blistering growth” and
concerns with wage/hour requirements.41
Economies of Scale. The consolidators may bring efficiency to the
deathcare industry. Buying in quantity — caskets, embalming fluid, etc. — allows
a company to increase its profits. So does joint or collective management: the
sharing of facilities and staff. It may also lead to new and creative personnel
practices as a device for profit enhancement — appropriate, perhaps, but often a42
break from past practice in the industry.
Purchasing in bulk can be cost effective — and profitable. Until recently, there
have been two major casket manufacturers: Batesville Casket Company (Indiana)
and York Group, Inc., of Houston. In the mid-1990s, Batesville had an estimated

36 Tom Ehrenfeld, “The Demise of Mom and Pop?,” Inc., Jan. 1995, p. 47. (Hereafter cited
as Ehrenfeld, The Demise of Mom and Pop?).
37 Fred S. McChesney, “Consumer Ignorance and Consumer Protection Law: Empirical
Evidence from the FTC Funeral Rule,” Journal of Law and Politics, fall 1990, pp. 14-15.
38 Dale L. Rollings, “Three Ways to Devalue Your Goodwill,” Mortuary Management, Oct.

1995, pp. 20-21.

39 Cox, While the Grim Reaper Toils.
40 Will Astor, “Discount Mortuary Ready to Make Death Less Painful to Pocketbook,”
Business Journal, Jan. 15, 1999, p. 1.
41 McWilliams, and Symonds, Dustup in ‘Death Services’, p. 40.
42 Bryce, Merchant of Death, p. 61.

45% of the market; York, about 15%.43 Some argue that consolidation has brought
price pressures on these supply firms with the bulk purchasers able to force
discounts.44 To the extent that there are such pressures, they may have a disparate
impact upon smaller firms (independents) for whom bulk buying may not be feasible
and to whom discounts may not be an option. Thus, they could be placed under even
greater pressure to economize in other areas such a labor costs.45
In urban centers where a firm has more than one mortuary, it is reported that
“conglomerates can jockey expensive equipment and underused personnel between
funeral homes.”46 Rather than retain an embalmer for each home, bodies may be
shipped to a centralized “prep center” for processing. Similarly, funeral directors
(normally staff employees) can be shifted from one place to another wherever their
services may be required. One switchboard operator may handle reservations for all
of the associated establishments. A single fleet of hearses and limos can serve a
number of mortuaries: providing more efficient utilization of equipment and
personnel with reduced cost.47 But, such clustering need not be confined to strictly
urban environments nor to high volume establishments. “Now the big companies are
at the point where they are acquiring mid- and small-sized firms,” notes Fred Bates
of National Selected Morticians, “where they can network in a geographic area with
employees and equipment.”48
Economic pressures have encouraged clustering throughout firms. To that end,
Tom Fisher observed, “managers in the operating units must reduce salary schedules
by sharing more staff among cluster facilities.” Increased use of “part-time labor”
has also been forecast.49 But, as with bulk purchasing, economies of scale in the area
of personnel may not be an option for smaller, independent firms. But, both for
consolidators and independents, economic pressure may lead to demands for
reduction of manpower costs: for lower wages and elimination of overtime pay.
The Trend Toward Cremation. There is, some believe, a close relationship
between consolidation and the growing trend to cremation. Smaller, often rural
funeral homes, have a relatively low volume of business. If 20-50% of their client
base opts for cremation, the economic impact can be substantial. For survival, such
firms may need to reduce overhead — in part, through cutting labor costs. But, since
competitive challenges in the industry are multiple and varied, the cremation trend

43 The Wall Street Journal, Feb. 19, 1997, pp. B1, B10.
44 Cox, While the Grim Reaper Toils, p. 43.
45 Ron Hast, “Loewen, SCI, Stuart [sic] Marry Batesville,” Mortuary Management, Apr.

1998, p. 4.

46 Shari Sweeney, “Graveyard Shifts,” Inside Business, Mar. 1999, pp. 34-37.
47 Ehrenfeld, The Demise of Mom and Pop?, p. 47.
48 Conglomerates Target a Broader Range, Mortuary Management, Feb. 1966, p. 25.
49 Tom Fisher, “Contemporary Funeral Service: The Culture of Corporations,” Mortuary
Management, May 1996, pp. 12-16. Early in 2000, SCI announced the layoff of 1,141
employees in its worldwide workforce. See Bureau of National Affairs, Daily Labor
Report, Jan. 18, 2000, p. A11.

simply provides one more burden — and one additional rationale for smaller firms
to sell to the consolidators.50
Although irregularly so, some believe “[c]remation is gradually becoming the
preferred American way of death.” Statistics (and projections) vary. In 1996, it was
reported that about 22% of bodies, nationally, were cremated — with a projection of
up to 40% by 2010.51 Nationally, there are wide variations in the trend, reflective of
an urban/rural disparity, cultural and religious traditions, and migration patterns.52
For the deathcare industry, the shift to cremation can be of significant economic
importance. First, there is the way the funeral home handles the service — if there
is a service. Will the body be embalmed? Will there be a viewing? What about
flowers? Second, there is the question of a casket. In 1994, it was reported that just
over 12% of American cremations were performed in caskets.53 George Lemke of
the Casket and Funeral Supply Association projects “a potential casket-sale loss of
$27.6 billion” between 1994 and 2010.54 Third, there are collateral issues: a
lessened need for cemetery space, for grave diggers and maintenance staff, for
markers and monuments. The challenge for the industry, then, may be how to
maintain profits (sales) in the face of a reduced demand for services. “On the one
hand, the increased number of direct cremations is alarming,” states David Nixon of
Funeral Management Service, Inc., of Springfield Illinois. “On the other hand, there
is definitely room for growth in the sale of additional services and merchandise.
Cremation-seeking families,” he adds, “constitute a market force you must deal with55

profitably. ”
50 “Independent Firms, Corporate Executives, Suppliers, and Cemeterians Talk About the
Issues for 1999,” The American Funeral Director, Jan. 1995, p. 19.
51 Alexandra Alger, “The New (and More Convenient) American Way of Death,” Forbes,
Oct. 21, 1996, p. 324. Robert T. Gill, “Whatever Happened to the American Way of
Death?” Public Interest, spring 1996, p. 108. Gill sees an increase to “above 30 percent by


52 “Cremation Statistics to the Year 2010,” The American Funeral Director, Nov. 1997, p.
20. Here, it is reported that the Pacific Coast “has been traditionally the percentage leader
in the cremation rate,” though there are rate fluctuations. According to Jack Springer of the
Cremation Association of North America (CANA), “in states like Hawaii and Nevada, they
have been flirting around the 55-60 percent of cremations to deaths for a number of years.
The state of Washington,” he stated, “was over 50 percent, and has dropped down this year
to 49 percent.” In pockets, the rate may be higher — or far lower. See also “Now a Custom:
Industry Seeks to Serve Cremation Families with Traditional Services,” The American
Funeral Director, Nov. 1994, p. 18.
53 “87.5% of ‘94 Cremations Were Casketless,” The American Funeral Director, Apr. 1995,
p. 12.
54 “Cremation Could Cost $27 Billion in Casket Sales: Suppliers to Offer More Cremation
Products and Programs,” The American Funeral Director, Nov. 1994, p. 22.
55 David W. Nixon, “Are You Listening to Your Cremation Sales?,” The American Funeral
Director, July 1995, p. 29.

Casket Competition. In a September 1999 study, the General Accounting
Office reports that “cemeteries and casket retailers are now competing with
traditional funeral providers, such as funeral homes, in the sales of caskets and other
funeral goods and services.”56 The extent of such competition may not be clear; but,
in certain areas, it has provoked controversy.
Following years of intermittent complaints about deceptive business practices
in the industry (and Jessica Mitford’s deathcare study),57 the Federal Trade
Commission issued a rule that became fully effective in April 1984. Inter alia, it
required funeral homes: (a) to provide a general price list (GPL) to customers, (b)
to allow customers to select only those services they wish rather than providing a
predetermined package of goods and services, and (3) to secure express approval58
before embalming can be performed. The rule targeted funeral homes, but left
questions about coverage in other segments of the deathcare industry. Chris
Raymond, editor of The Director, queried: “Is ‘Caskets-R-Us’ in the strip-mall ...
required to provide a GPL to their customers?”59 These issues have continued in60
Increasingly, cut-rate and discount casket merchants have emerged.61 This, in
turn, has sparked competition between the old-line dealers and the newer low-cost
firms. In some areas, there have been disputes over licensing requirements and
business practices. How much public regulation should be imposed upon firms
dealing in hardware (caskets, urns, shrouds, etc.), as opposed to actual embalming
and burial activities, remains in contention. Where strictly hardware is concerned,
observed The Forth Worth Star-Telegram, “there’s no practical reason” why such a
business “has to be licensed. The state already has consumer protection laws in place
that would apply to such products.” Yet such items are an integral part of the
business of the narrower funeral industry.62

56 U.S. General Accounting Office, Funeral-Related Industries: Complaints and State Laws
Vary, and FTC Could Better Manage the Funeral Rule, report to Congressional Requesters,
GAO/GGD-99-156, Sept. 1999 (Washington: GPO, 1999), p. 7. (Hereafter cited as GAO,
Funeral-Related Industries.).
57 Jessica Mitford’s controversial account of the deathcare industry, The American Way of
Death (New York: Simon and Schuster) was published in 1963. Subsequent editions
appeared in 1978 and 1998. See also Tom Fisher, “Jessica Mitford: A Retrospect,”
Mortuary Management, Sept. 1996, pp. 12-14.
58 GAO, Funeral-Related Industries, p. 6. The rule was updated in 1994 and was again
under review in 1999.
59 Chris Raymond, “Knowledge, Power & You,” The Director, June 1999, p. 7.
60 On the current status of the FTC rule, see Fitch, John H., Jr. NFDA and the Funeral Rule,
The Director, June 1999, p. 18 and 20.
61 Gordon Fairclough, “Casket Stores Offer Bargains to Die For,” The Wall Street Journal,
Feb 19, 1997, p. B1; and “Mexican Caskets Migrate Northward,” Mortuary Management,
June 1997, p. 37.
62 “Of Grave Import,” The Forth Worth Star-Telegram, Jan. 8, 2000, p. 12. See also Bill
Brewer, “Lawsuit to Challenge State Law on Casket Sales,” Knoxville News-Sentinel, Sept.

The economic impact of these shifts could be substantial. On the one hand, the
older casket manufacturers are confronted with competition from insurgent retailers
— at the same time that they are under pressure from the consolidators for bulk-
purchase discounts. Conversely, funeral homes may find increasing numbers of
clients demanding fewer services — and providing their own cut-rate coffins. “In
this era of bargain-basement cremation societies and store-front casket vendors,”
observed Patrick Bellomi in Mortuary Management, “it appears that the traditional
funeral director is ... to go the way of the horse-drawn hearse.”63
A “Shaking Out” of the Industry
“People who don’t buy our stock just don’t like money,” Robert Waltrip of SCI
is quoted as saying. During three decades, Waltrip built a firm with $1.7 billion in
annual sales: a 1995 profit margin of 11%. In 1996, SCI would conduct “one out of
ten funeral services in U.S., about 230,000 in total.” During the mid-1990s, SCI had
“nearly quadrupled its holdings,” emerging as the largest provider of funeral services
in the United Kingdom and France — and it continued to expand.64 The other major
consolidators, Loewen and Stewart, were following in largely the same path.
Then, things seemed to change. Robin Fields of The Los Angeles Times quipped
that the funeral business had “caught a glimpse of its own mortality.”65 In The Wall
Street Journal, Bruce Ingersoll pointed to “unprecedented industry turmoil.”66 What
happened is subject to interpretation. Change within the industry had been rapid.
Some suggested that the death rate had been lower than expected.67 There may have
been internal management problems in some sectors.68 The Loewen Group became
involved in costly business-related litigation with a Mississippi firm (in the mid-

62 (...continued)

16, 1999, p. C1; Beth Brady, “Casket Trust Gouges Grieving Families,” Chattanooga Times,

Oct. 14, 1999, p. B7; Mike Koller, “Casket Retailers Form Association to Protect Interests,”
Dallas Business Journal, Oct. 1, 1999, p. 22; Miranda Perry, “Urning an Honest Living,”
Intellectual Ammunition, Nov./Dec. 1999, p. 8; and Siobhan Byrne, “Cut-Price Coffin
Makers Dig in for Funeral Trade Wars,” Scotland on Sunday, Oct. 17, 1999, p. 20.
Comparison shopping seems not to be a common practice among those seeking an
63 Patrick Bellomi, “Removals: Front Line to the Bottom Line,” Mortuary Management,
Sept. 1997, p. 17.
64 Bryce, Merchant of Death, pp. 58 and 60.
65 Fields, Grim Time for Funeral Firms, p. C1.
66 Bruce Ingersoll, “Senate Probe of Funeral Home Abuses May Spur Stricter Federal
Regulation,” The Wall Street Journal, Oct. 22, 1999, p. B11.
67 Little, Taking Stock in Death Care Industry, p. 23; and Gary Meyers, “Death Care
Industry Has Fallen on Hard Times,” The State Journal-Register (Springfield, Ill.), Aug. 29,

1999, p. 50.

68 “Interview: Jon Thomas,” Today in Deathcare, June 1999, p. 14.

1990s).69 Then, in 1996, SCI proposed a takeover of Loewen (which Loewen
resisted): the Canadian firm continued to expand.70 But, by the summer of 1999, for
diverse causes, the Loewen Group filed for Chapter 11 bankruptcy protection.71
Through the fall of 1999 and beyond, the industry appears to have undergone
something of a reassessment. In early 2000, SCI announced employee layoffs and
reportedly halted acquisitions. Nevertheless, many analysts felt the industry picture
remained generally positive. “Death care is one of the most stable competitive
industries, with one of the fewest failure rates of any industry in the country.”72 The
more positive aspects of consolidation (from an industry perspective — economies
of scale, more efficient employee utilization, reconsideration of the types of service
to be rendered) remain in place together, some might argue, with a heightened
consumer awareness.
A Presence in Washington
The deathcare industry is diverse and represented by a variety of trade
associations. For licensed funeral directors and embalmers, a primary agency appears
to be the National Funeral Directors Association (NFDA), founded in 1882. Based
in Wisconsin, it is said to have 15,000 members with 50 state units, a staff of 44 and
a budget in excess of $9 million.73
At least since the close of World War II, the NFDA had been represented before
the Congress and various federal agencies. But, with changes in the industry in the
early 1990s, Washington representation became more systematized, developing a
new structure and taking on new staff. It began a general assessment of “the costs
to funeral homes of complying with regulations on all levels of government” in order
to be able to provide data “to lawmakers and bureaucrats to thwart costly
regulation.”74 A Washington office for the NFDA was authorized and, in March

69 Xavier A. Cronin, “A Bitter Battle Is Settled,” The American Funeral Director, Mar.

1996, pp. 18-19.

70 Steve Lipin, and Tamsin Carlisle, “Service Corp. Seeks Loewen in $2.8 Billion Stock
Deal,” The Wall Street Journal, Sept. 18, 1996, pp. A3, A6; Fields, Grim Time for Funeral
Firms, p. C1; and McWilliams and Symonds, Dustup in ‘Death Services’, p. 40.
71 See National Post (Canada), June 2, 1999, p. CO1; June 18, 1999, p. DO1; and Sept. 1,
1999, p. CO1; and “ The Loewen Group Files Chapter 11 in U.S. and Canada,” The
American Funeral Director, July 1999, pp. 6, 92-93.
72 Little, Taking Stock in Death Care Industry, p. 23. See also Jeff Harrington, “A Phoenix
in the Ashes,” St. Petersburg Times, Jan. 31, 2000, p. 8E; Bureau of National Affairs, Daily
Labor Report, Jan. 18, 2000, p. A11; Greg Hassell, “Service Corp. Battles Tombstone
Blues: Firm Seeks Revival with New Strategy,” The Houston Chronicle, Feb. 11, 2000, p.

1; and “The Death Business: Staying Alive,” The Economist, Aug. 5, 2000, pp. 61-62.

73 Tara E. Sheets, ed., Encyclopedia of Associations, 35th Edition (Farmington Hills, Mich.:
The Gale Group, 1999), v. 1, pp. 277-278. (Hereafter cited as Sheets, Encyclopedia of
74 “NFDA Revamps Government Relations Program,” The American Funeral Director, Aug.

1997, John H. Fitch was brought aboard as Director of Government Relations. An
associate, Paul Miller, joined him early in 1998.75
Fitch was instructed by the NFDA to “[e]stablish a presence” for the
Association in Washington. The lobbying agenda reportedly was extensive: to alter
the asset treatment of preneed policies for Medicaid eligibility purposes, to reform
the bankruptcy laws, to encourage the FTC to impose “funeral rule” requirements on
cemeteries and funeral-related retailers, to modify licensing requirements for
recorded music, to deal with OSHA and EPA issues, to amend the FLSA with respect
to comp time, and to effect exemption of “licensed funeral directors and embalmers
from the federal wage & hour laws.”76
The Workforce
How many licensed funeral directors and licensed embalmers are there in the
United States? Who are they and what do they do? What are their working hours
and how much do they earn? Are such persons highly-paid professionals or just
rank-and-file employees?
General Characteristics
In a brief sketch, it is difficult to determine who funeral directors and embalmers
actually are. One practical problem is disaggregation. In the literature, it is not
always clear when the two types of work are joined in one person and when they are
distinct. Further, for statistical purposes, there is a tendency to consider funeral
industry employees without differentiation.
What Do the Numbers Suggest? Paul Miller of the NFDA indicates that
there are about 50,000 funeral directors and embalmers nationwide: about 15,00077
funeral directors (who may also be embalmers) are members of the Association.
But, funeral directors need not be embalmers — nor is it required that embalmers be
funeral directors: some states license these workers jointly; others, separately. Since
the NFDA is identified as a federation “of state funeral directors’ associations with
individual membership of funeral directors” (15,000 members), it may not be
immediately clear how many of the members are individuals and how many are

74 (...continued)

1994, p. 8.

75 John H. Fitch, “1998 in Review,” The Director, Dec. 1998, p. 26. (Hereafter cited as
Fitch, 1998 in Review). See also “Stronger PR Programs,” Mortuary Management, June
1998, p. 21; The Chicago Tribune, Sept. 6, 1998, p. C2; and “NFDA Hires Government
Relations Director,” Mortuary Management, Apr. 1997, p. 24.
76 The Director, May 1999, p. 62. See also The Director, Dec. 1998, pp. 26, 28, 30, 60, 68,
and 70.
77 Telephone discussion with Mr. Miller, Oct. 19, 1999.

institutional units.78 The 1998-1999 Occupational Outlook Handbook notes:
“Funeral directors held about 33,000 jobs in 1996.”79 In its occupational employment
series, however, the Bureau of Labor Statistics offers a slightly different distribution
(in this case, for 1997): funeral directors and morticians, 24,880; funeral attendants,

22,410; and embalmers, 5,890.80 But, with “almost 27,000 funeral service providers”

nationwide, one might wonder at the small number of embalmers. Then, there may
be definitional problems with respect to the various categories of workers.81
A Common Body of Duties? Though the duties of an embalmer may be
relatively clear, the distinct responsibilities of “funeral directors,” “morticians,” and
“funeral attendants” may raise some questions. Where the funeral director is not
simultaneously an embalmer, his duties would appear to be largely organizational:
i.e., arranging the logistics of the funeral, consoling the family, and conducting the
business aspects of the proceeding. He may also be involved, depending upon the
make-up of the unit, in placing obituaries and polishing hearses. The distinction, in
terms of duties, between a licensed funeral director and a staffer who may not yet be
licensed may be ambiguous and dependent upon the size of the funeral home, the
volume of business conducted, tradition, etc. Clearly, the duties of a funeral director
might vary substantially, depending upon whether the funeral home it is a free-
standing owner-operated facility or part of a cluster operated by a consolidator.
An Employee, Not Necessarily an Owner/Manager. What may be more
clear is that the funeral director is often not (or, at least, need not be) the owner of a
funeral home. The Bureau of Labor Statistics notes that three-fourths of such
workers are employees and not self-employed.82 Nor are they necessarily top-level
supervisors. For example, one analyst speaking of career trajectories suggests that,
in large funeral homes, one may advance “to chapel manager, where you help
supervise the efforts of several funeral directors who report to you.”83 A funeral

78 Sheets, Encyclopedia of Associations, v. 1, p. 277.
79 Occupational Outlook Handbook, 1998-1999, U.S. Department of Labor, Bureau of Labor
Statistics. Available at [], Oct. 20, 1999. (Hereafter
cited as DOL, Occupational Outlook Handbook, 1998-1999).
80 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment
Statistics, 1997 National Occupation Employment and Wage Estimates. Current data
available at [], and [
oes/current/oes394011.htm] .
81 U.S. General Accounting Office, Funeral-Related Industries: Complaints and State Laws
Vary, and FTC Could Better Manage the Funeral Rule, report to Congressional Requesters,
GAO/GGD-99-156, Sept. 1999 (Washington: GPO, 1999). Information on p. 3 states that
there are “almost 27,000 funeral service providers, such as funeral homes and crematories,”
nationwide. Complicating matters further is the definition of “funeral service provider” —
and, whether one is speaking of an independently owned mortuary or one that is part of a
“cluster” of units attached to one of the large chains.
82 DOL, Occupational Outlook Handbook, 1998-1999.
83 Terence J. Sacks, Opportunities in Funeral Services Careers (Lincolnwood, Illinois:
VGM Career Horizons, 1997), p. 40. (Hereafter cited as Sacks, Opportunities in Funeral

director may be an entry-level employee — or he (or she) may be a senior staff
person or even an owner, though the latter, it seems, ought not to be implied by the
job title — funeral director. Similarly, an embalmer may more likely be an
employee than an independent owner/mortician.
Wages and Hours. Earnings estimates vary substantially. Terence Sacks,
in his analysis of career opportunities in the funeral industry, suggests that the
average earnings (salary and bonus) for owner/managers in 1994 was about $67,000
— but, he also suggests that income would vary with the size of the homes and the
number of services performed. He then moves on down through the hierarchy to the
third level: i.e., the funeral directors and embalmers. For such workers, he states,
salary might range from $34,172 in large establishments to $26,410 in smaller
homes. But Sacks emphasizes that “these are national figures” and subject to wide
fluctuation on a local or regional basis.84 BLS, using 1996 data, suggests a slightly
different range, weekly and monthly: the middle 50% earned between $447
($23,244) and $849 ($44,148) — with the lowest 10% earning less than $3568586
($18,512). Some, however, report a less encouraging picture.
In addition to widely varying wage rates, sometimes relatively low, the hours
worked by funeral directors have often been “long” and “irregular.” “Shift work is87
sometimes necessary because funeral home hours include evenings and weekends.”
There has been in the industry, Ron Hast of Mortuary Management observes, a belief
“that day, night and weekend commitment was necessary if one were to earn a living
in funeral service.”88 But with restructuring, that approach may be changing.
“Funeral homes will have to be more creative in their approach to compensating and
motivating top-quality employees,” observes Ralph Klicker in The American Funeral
Director. “Salaries will have to go up and the number of hours worked and the
scheduling of nights, weekends, and on-call will have to decline.” He adds, with an
eye to the future: “The still-present belief that when you are slow, employees can
spend the entire day around the funeral home doing other tasks, and then if you get
a call at 5 p.m., they should expect to stay without extra compensation, is on the way

83 (...continued)
Services Careers.).
84 Ibid., pp. 44-46.
85 DOL, Occupational Outlook Handbook, 1998-1999.
86 Ralph L. Klicker, “Funeral Service Faces A World of Change,” The American Funeral
Director, May 1992, p. 38. (Hereafter cited as Klicker, Funeral Service Faces a World of
Change.) See also Gordon Bigelow, “Funeral Service Education: Background and Status,”
The American Funeral Director, Oct. 1992, pp. 80 and 82. (Hereafter cited as Bigelow,
Funeral Service Education.)
87 DOL, Occupational Outlook Handbook, 1998-1999.
88 Ron Hast, “Waltrip, Loewen, Stewart: Achievement, Perspective, Vision,” Mortuary
Management, Mar. 1998, p. 6.
89 Klicker, Funeral Service Faces A World of Change, p. 42. With the flexibility built into

Basically Non-Union? Trade unionization among funeral directors seems
to be minimal, though some measure of organization appears to have developed in
Chicago and in New York City. Tom Fisher of Mortuary Management, for example,
notes that the industry in New York City “... maintains a highly structured labor
union climate. There are four separate mortuary-related bargaining unions [sic].
Each represents a distinct mortuary discipline, ranging from a bargaining unit for90
embalmers to another for porters.” Both the NFDA and the AFL-CIO have
expressed awareness of organizational efforts in Chicago, generally associated with
the International Brotherhood of Teamsters — also, apparently, organizing in New
York City. Whether the workers being organized are funeral directors or, possibly,91
drivers employed by large urban mortuaries is not clear. Although the sample was
small, the pattern is reflected in data presented by the Bureau of National Affairs
(BNA). In the general category of funeral service and crematories (with no further
differentiation), BNA places the percentage of trade unionization in the industry at92

1.9% (1998) and 1.2% (1999).

Changing Demographics. Change in funeral industry employment appears
to be occurring in at least three respects: gender, race, and age. “... there can be no
argument that historically white males have dominated the funeral industry,”
observes Jacquelyn Taylor of San Francisco College of Mortuary Science. She points
to a significant change through the past several decades with more women (especially
African-American women) entering the field. She also notes a larger number of
students who commence their training at an older age.93
As women have increased in number among students preparing for a career in
the funeral industry, they appear to have become an increasingly valued component
of the labor force.94 In addition to their ability to meet normal service requirements,
women have come to be regarded, it seems, as “more compassionate and sensitive
and [to] work better with families.”95 Conversely, states Eugene Ogrodnik of the

89 (...continued)
the FLSA, flexible scheduling and shift work are permitted — and may offer one solution
to the irregular hours problem. See also Jacquelyn Taylor, “Where’s All the Good Help: A
Look at Changes in the Labor Pool,” The American Funeral Director, Apr. 1999, p. 28.
(Hereafter cited as Taylor, Where’s all the Good Help.).
90 Tom Fisher, “On The Expansion Track with Stephen Mack,” Mortuary Management,
Nov. 1995, p. 14.
91 Telephone discussion with Paul Miller, NFDA, Oct. 19, 1999; and with staff of the
organizational departments of the Teamsters and AFL-CIO, Oct. 21, 1999.
92 Barry T. Hirsch, and David A. Macpherson, Union Membership and Earnings Data Book:
Compilations from the Current Population Survey (1999 Edition) (Washington: The Bureau
of National Affairs, Inc., 1999), p. 52. See also the 2000 Edition, p. 54.
93 Taylor, Where’s All the Good Help, p. 26.
94 Edward J. DeFort, “You’ve Come a Long Way: It Seems that Today, a Woman’s Place
Is in the (Funeral) Home,” The American Funeral Director, May 1997, p. 22.
95 Darwin Gearhart of Miami/Dade Department of Funeral Service Education, quoted in
Xavier A. Cronin “Acceptance Is Growing As More Women Enter the Field,” The American

Pittsburgh Institute of Mortuary Science, “Men have a harder time being seen as
sensitive ... And there’s a perception that even when men are sensitive there’s an
ulterior motive that doesn’t come across with a woman.”96 Further, some have
suggested, women “are not necessarily motivated by salary as much as service.”97
(See Table 2).
Table 2. U.S. Funeral Service Education Graduates 1976-1995
(by race and gender)
African-American Caucasian
Male Female Male Female
1976 169 70 1,529 90
1981 175 103 1,057 144
1986 169 99 1,059 203
1991 137 137 979 251
1995 210 202 1,257 473
Source: American Board of Funeral Service Education, published in Edward J. Deport “Youve
Come A Long Way: It Seems that Today, a Womans Place Is in the (Funeral) Home,” The American
Funeral Director, May 1997, p. 22.
Profession or Craft?
As noted above, exemption from the minimum wage and overtime pay
requirements of the FLSA can be accomplished by at least two routes. First,
Congress (with the President concurring) can simply declare a body of workers —
in this instance, persons employed as a licensed funeral director or a licensed
embalmer — to be exempt. This would remove the issue from the hands of the
Secretary of Labor: no further administrative determinations would be necessary.
Second, the targeted workers can be rendered exempt because they meet certain
conditions or qualifications associated with an existing exemption: here, that they
are bona fide professionals under Section 13(a)(1) of the act. (See discussion of the
Rutlin case and of Section 13(a)(1) above.)
For Section 13(a)(1) purposes, professional has a specialized meaning beyond
the colloquial. Inter alia, it includes work “of an advance[d] type in a field of
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study, as distinguished from a general academic

95 (...continued)
Funeral Director, May 1995, pp. 19-20. (Hereafter cited as Cronin, Acceptance Is
96 Eugene Ogrodnik, quoted in Cronin, Acceptance Is Growing, p. 62.
97 John Kroshus, quoted in Cronin, Acceptance Is Growing, p. 62.

education and from an apprenticeship, and from training in the performance of
routine mental, manual, or physical processes ....” (Emphasis added.) Thus, for
Section 13(a)(1) purposes, a worker must be something more than a skilled (even
highly skilled) craftsman or technician.98
How the Industry Views Itself. In December 1994, The American Funeral
Director reviewed current policy issues of interest to the NFDA and, among other
things, observed: “Funeral directors are still not defined as ‘professionals’ by the
federal Department of Labor. NFDA says it is ‘investigating possible action to
challenge current interpretation,’ but has not yet established a policy.”99
It had “been evident for many years that there is a fundamental disagreement
among practitioners as to whether funeral service is a vocation or a profession. If it
is a vocation, a trade,” stated Dan Flory of the Cincinnati College of Mortuary
Science, “then the federal government is correct in classifying funeral service among
‘personal services’” such as “massage, barbering, [and] drycleaning.”100 After years
of debate, the American Board of Funeral Service Education (ABFSE, the accrediting
agency for the funeral service industry) began to lobby the NFDA membership for
a higher sense of professionalism. In late 1990, it proposed an enhanced
(professional) course of study and recommended “that an associate’s degree be the101
minimum academic requirement for licensure.”
Within the NFDA, there were divergent views. The Board’s spokesman Gordon
Bigelow reassured the Association’s members: “The technical area will remain at
the core of the mortuary science curriculum because embalming is what is unique
about funeral service.”102 He had allies. “If we want to be viewed as professionals,”
observed Garth Nelson of Mt. Hood Community College in Gresham, Oregon, “we
need to act like professionals and have a professional level of education.”103 Louis
Misantone of the New England Institute, Newton Center, Massachusetts, added:
“Since our society has come to recognize professionals by their level of education,104
new funeral directors will have to meet client expectations of education expertise.”
Would an associate’s degree be sufficient? John Kroshus of the University of
Minnesota questioned: “We are all aware that many occupations have tried to
enhance their prestige with liberal use of labels such as profession and professional.”

98 Again, this may be changing. See new rules issued under Section 13(a)(1) of the FLSA.
99 “Government Affairs a Topic at Policy Board Meeting,” The American Funeral Director,
Dec. 1994, p. 62.
100 “College Executives Assess ABFSE Recommendations,” The American Funeral
Director, Apr. 1992, p. 22. (Hereafter cited as AFD, College Executives), this is a
symposium on the educational requirements of funeral industry personnel.
101 AFD, College Executives, p. 22. See also Phyllis A. Kusuplos, “More Responsibilities
Require More Training,” The American Funeral Director, May 1991, pp. 20-21.
102 AFD, College Executives, p. 22.
103 Ibid., p. 25.
104 Ibid., p. 26.

But, what is behind such labels, he asked. Following closely the logic of the
Department of Labor, Dr. Kroshus stated rhetorically: “Does the associate degree,
diploma, or certificate of completion represent the fulfillment of intensive academic
preparation aimed at imparting a specialized body of knowledge?” He suggested that
the bachelor’s degree was the minimum required; but he added that an “occupation”
does not “become a profession by simple proclamation.”105
Reiterating his appeal for at least an associate’s degree requirement, Dr.
Bigelow carefully explained that “[p]rofessional funeral service courses focus the
mind on specific technical tasks required of the funeral director/embalmer, while
liberal arts courses open the mind to learn how to deal with unanticipated situations.”
Both, he felt, were important.106 While some remained dubious or outright hostile
to such enhanced (some might say, gratuitous) requirements, Ralph Klicker posed a
double-edged query: “Are our profession’s entry level and continuing education
requirements adequate to meet the demands of the future?” And: “Will the public
expect the funeral directors they deal with to be as educated as they are?”107
The debate would continue through the remainder of the century. In 1995, the
newly elected president of the NFDA, Bruce Overton, argued that high school plus
an associate degree was no longer sufficient. “We must change the picture where the
educational requirements for the funeral director are far less than the occupations of
client families sitting in his or her arrangement room.”108
The Issue of Education. In the summer of 1999, David R. Pearson of the
NFDA asserted: “Today’s state laws are a hodge-podge of entry-level requirements,
and provide no consistency to the ... job that funeral directors do across the109
country.” Gordon Bigelow, similarly, noted that the ABFSE had “worked hard ...
to make funeral service education consistent” nationally so that a funeral services
major in California would “have to take the same courses as if you were in New
Jersey.”110 Given a somewhat ambiguous industry response, the campaign would be
long and arduous.

105 Ibid., pp. 22, 27-28. Neither Flory nor Kroshus seemed wholly convinced even of the
adequacy of a bachelor’s degree. Flory observed: “Compare this to law, medicine,
business, or teaching, where one encounters the master’s degree as an entry-level
credential.” Kroshus concurred: “The general standard for both doctors and lawyers is that
they have an earned bachelor’s degree before they even begin their professional academic
106 Bigelow, Funeral Service Education, p. 80.
107 Klicker, Funeral Service Faces a World of Change, p. 38.
108 “Overton Calls for Higher Educational Requirements, Cooperation,” The American
Funeral Director, Dec. 1995, p. 27.
109 David R. Pearson, “(NFDA president) Improving Funeral Service Through Education,”
The Director, July 1999, p. 5. (Hereafter cited as Pearson, Improving Funeral Service
Through Education.)
110 Edward J. DeFort, “After 15 Years with ABFSE, Bigelow Calls It a Career,” The
American Funeral Director, Apr. 1999, pp. 90-91. (Hereafter cited as DeFort, After 15
Years with ABFSE.)

By September 1999, there were about 48 mortuary-instruction programs in the
United States. Some of these were college and university programs; others, operated
by community colleges or technical institutes of mortuary science and/or of
embalming. The programs/schools are relatively small with about 3,000 students
enrolled nationally.111
As the NFDA’s David Pearson indicates, the individual programs vary greatly:
from programs that provide an associate degree with 12 to 16 months of training, to
a certificate program completed in 6 months for those with previous college
experience.112 Evaluation of prior academic work for transfer purposes and/or
program prerequisites, of course, can be a delicate task with substantial impact upon
the time required for a diploma or associate’s degree. Reportedly, the dropout rate
for students is high (“Approximately 28-30% of students who enroll fail to complete
the program.”); but, the likelihood of success is said to be higher where students enter
the program with some prior college training.113
In the early 1990s, the ABFSE had proposed the associate degree as the
minimum standard for the profession and, in 1996, it approved “the Associate Degree
or its credit hour equivalent to be accredited.” Bigelow notes that it had taken “10
years to implement this level which had been discussed for 70 years.”114 Almost
immediately thereafter, a campaign was launched to set the requirement for funeral
directors and embalmers at the B.A. level.
These initiatives met a mixed reception within the industry. The reasons varied.
While some viewed increased education as an essential requirement for professional
status and for dealing with the challenges of the field; others saw it as superfluous.115
There were structural impediments to change as well. “Generally speaking,
educational institutions cannot grant a bachelor’s degree without approval from some
type of state higher education board. It is unlikely,” observed John Kroshus of the
University of Minnesota’s Program of Mortuary Science, “that community colleges
and private mortuary colleges would be able to secure any such approval.” Some

111 See AFD, College Executives, p. 24; David Lazarus, “Mortuary Field Wide Open,” The
San Francisco Chronicle, Sept. 25, 1999, p. A1. (Hereafter cited as Lazarus, Mortuary
Field Wide Open); and Gordon Bigelow, “History of the ABFSE,” Journal of Funeral
Service Education, v. 4, 1997, p. 3. (Hereafter cited as Bigelow, History of the ABFSE)
Liability considerations impose certain constraints with respect to hands-on experience on
college campuses.
112 Lazarus, Mortuary Field Wide Open, p. A1; and AFD, College Executives, p. 23.
113 Bigelow, Funeral Service Education, p. 80.
114 Bigelow, History of the ABFSE, v. 4, p. 4.
115 AFD, College Executives, pp. 24, 27. Tommy Metcalfe, “The $64,000 Question: Can
Funeral Service Afford the Baccalaureate Degree?” Mortuary Management, Apr. 1998, p.
6. (Hereafter cited as Metcalf, The $64,000 Question). Tommy Metcalf of the Texas
Funeral Directors Association and director of industrial relations for SCI, argued that
additional education was not essential. Besides, he noted a “random survey of 100 licensees
in Houston” disclosed that “less than 10% had a bachelor’s degree.” See also “For a
Bachelor’s Degree Requirement,” The American Funeral Director, Feb. 1996, p. 6.

may have feared that the traditional schools would be swallowed up by the four-year
Finally, there was the matter of costs: not the costs of education, but those
flowing from heightened expectations on the part of better educated workers. Board
director Bigelow observed: “A lot of funeral directors feel that if you upgrade the
degree then the graduating students will demand higher salaries and that’s going to
cost their businesses more.” He added: “The financial issue, and the fear of driving
costs up is on their minds.”117 Kroshus of Minnesota affirmed: “The funeral
business would have to demonstrate that rewards, in the form of salaries, fringe
benefits, and personal satisfaction, are present in sufficient quantity to make the
educational effort worthwhile.”118 But Eugene Ogrodnik of the Pittsburgh Institute
of Mortuary Science was not optimistic. “Practically speaking ... [the] funeral service
[industry] unfortunately is not ready to deliver the compensation package that goes
with a bachelor’s degree ... truly a shame!”119
The Apprenticeship Requirement. Apprentice training, normally, is a part
of the licensing program for funeral directors and embalmers and is, thus, one of the
qualifying criteria for entry into the field. The process varies somewhat from state
to state and is governed by state regulation. Ordinarily, the prospective apprentice
secures employment and then enters a formal program of instruction leading to
licensing in the craft. The length of apprenticeship differs from one state to another:
it is usually from one to two years. Again, depending upon state practice,
apprenticeship can be served “before, during, or after mortuary school.”120
Speaking generally (because state requirements may vary), apprenticeship in the
funeral services industry is organized and conducted by the employer — usually, it
appears, under the general supervision of the state licensing agency.121 Generally,
there is no union involved. The apprentice works with the employer. Training is
“on-the-job” and, at least in some states, without directly related classroom
instruction: the latter, it appears, may be conducted separately and independently
from apprenticeship. Salary is arranged between the employer and the apprentice.

116 AFD, College Executives, p. 28. See also Louis Misantone, “Survival of the Fittest: Can
an Independent Funeral Service Institute Survive a Merger with a College?,” The American
Funeral Director, Oct. 1995. pp. 128-137.
117 DeFort, After 15 Years with ABFSE, p. 90.
118 AFD, College Executives, p. 28.
119 Ibid., p. 26.
120 DOL, Occupational Outlook Handbook, 1998-1999.
121 In the crafts, apprentice training is carefully structured. Under the Fitzgerald Act (the
National Apprenticeship Act of 1937, Title 29, Section 50), apprenticeship has a precise
meaning. Usually (though not always), it involves four entities: the apprentice, the
employer, the trade union in the field, and public oversight and certification — either
through the U.S. Department of Labor and/or through the various state apprenticeship
councils. On a craft by craft basis, the duration of training, the scope of training and the
rights and duties of the parties at interest are formalized and monitored under by the
apprenticeship bureau at the Department of Labor.

The apprentice, at the discretion of the employer, may “do a little of nearly
everything.” Terence Sacks, in his analysis of careers in funeral services, notes:
“You might, for instance, assist in embalmings, in helping to cosmeticize the dead,
in placing the dead in caskets, and in assisting during funerals.” Aside from the
learning experience, the apprentice appears often to function as a general utility
worker. 122
“[O]n-the-job training,” suggests Louis Misantone (president, Funeral Institute
of the North East), “happens in situations with little structure.” The content of the
instruction and the manner of its presentation appear to rest with the individual
employer (or a licensed practitioner in his employ). Misantone notes that “students
consistently report resistance by their ‘on the job instructors’” — in part, perhaps,
because of reluctance to impart skills to potential competitors who may be younger
and command lower wages.123 But the system “can be effective,” observes Marvin
E. Grant of East Mississippi Community College, “provided that the embalmer/
preceptors are trained in proper instruction techniques, and are willing to commit
themselves to actually teaching, instead of looking for cheap labor.”124
Licensure. All states, it appears, except Colorado, require funeral directors
and embalmers to be licensed. But, licensing requirements vary from state to state.
Some states have separate licensing requirements for directors and for embalmers;
some issue a joint license. This may lead to separate (or joint) curricula in the125
various states — and, within the states, a variety of licenses may be allowed.
“Regulations are about as varied as the United States,” notes Nick Verrastro in
The American Funeral Director, with 24 different types of licenses. Equally diverse
are the requirements for securing a license. “For individual licenses, initial
application fees range from nil to $300, while renewal fees are from $10 to $300.
Licenses have to be renewed annually in 29 states and every two years in 19,” he
explained.126 Further, Terry McEnany of Commonwealth Institute of Funeral Service
(Houston) states that “[l]icensure requirements reflect the minimum education and
training an individual is required to obtain to practice.”127 And, since educational
(and apprenticeship) requirements vary from state to state, evaluating the relative
strength of a license may be somewhat problematic.

122 Sacks, Opportunities in Funeral Services Careers, pp. 38-39.
123 Louis Misantone, “Teaching Our Most Important Skills: An Obligation of the Elders?,”
The American Funeral Director, Apr. 1999, pp. 29-30.
124 AFD, College Executives, p. 24.
125 See The Chicago Tribune, Apr. 30, 2000, p. 1, Zone C; DOL, Occupational Outlook
Handbook, 1998-1999; and Michael Landon, “The Online Classroom: Teaching Funeral
Services Classes on the Internet,” The American Funeral Director, Apr. 1999, p. 24.
126 Nick Verrastro, “Peer Groups Boards ‘On Mighty Thin Ice’,” The American Funeral
Director, Jan. 1995. pp. 32, 34, and 42. Here, as in much of the literature, it is not entirely
clear which precise license and sub-discipline is being discussed.
127 AFD, College Executives, p. 23. See Bigelow, Funeral Service Education, pp. 78-84.

With wage/hour requirements dependent upon licensure (under the pending
legislation during recent Congresses), some uniformity may be desirable: a lack of
uniformity could raise other concerns. There are now “50 different licensing laws
that effectively restrict a person’s ability to practice,” observes David Pearson of the
NFDA.128 The states, however, may have some reluctance to recognize each other’s
requirements. In 1999, the NFDA proposed a reciprocity standard for submission to
the states, recognizing beforehand that “each state will attempt to ‘tweak’ the plan.”
The NFDA’s Bruce Overton opined that “the best way to achieve universal
endorsement or reciprocity is to have universal educational standards.”129
Meanwhile, however, state-by-state variation persists.
Some Policy Considerations
Through the past several Congresses, legislation has been proposed that would
have excluded “any employee employed as a licensed funeral director or a licensed
embalmer” from minimum wage and overtime pay protection under the Fair Labor
Standards Act. Had the legislation been adopted, there would be no minimum wage
required under federal law for the targeted workers and no requirement that overtime
rates be paid after 40 hours of work per week. The motivation for such an exemption
seems to be twofold: first, to reduce the cost to the employer of doing business; and,
second, to enhance employer flexibility in manpower utilization.
In support of the proposed exemption, some have argued that the funeral
industry operates under conditions that make FLSA obligations unusually onerous:
e.g., that deathcare employers are small businesses, that the hours of work are often
irregular, that the requirements of the FLSA are convoluted and difficult to
understand. None of these basic contentions appears to be especially unique to the
funeral industry, nor are the underlying assumptions upon which they rest necessarily
beyond challenge. Others have suggested that licensed funeral directors and
embalmers are professionals and should be exempt from minimum wage and
overtime pay coverage on that basis.
It may be difficult to argue that deathcare, at large, constitutes a small business.
During the past 10 to 15 years, there have been major changes in the funeral services
industry. The primary change, it appears, has been its ongoing transformation from
a collection of small family firms into substantial national and international corporate
entities. (Small firms, however, remain more numerous than the consolidated firms,
though some suggest that it is the latter that are now the driving force in the industry.)
With consolidation, there has been a change in the industry’s economic structure: the
manner in which it does business — i.e., bulk purchasing, economies of scale,
clustering of facilities and cooperative utilization of staff and equipment. All of this
has widened the gulf between the consolidators and the traditional “mom-and-pop”
operations — though industry spokespersons still present “funeral directors as human

128 Pearson, Improving Funeral Service Through Education, p. 5.
129 Bruce Overton, “Positive Movement in Licensing Mobility,” The American Funeral
Director, Jan. 1999. p. 22.

beings and neighbors” and “funeral homes as one of the last of the true family owned,
small businesses left in America”130 — the “quintessential small business.”131 The
proposed exemption from minimum wage and overtime pay, however, would apply
to small firms and to the consolidators alike. And, one might argue, the exemption
might prove more useful to the larger firms in which labor-management relations
may be more impersonal and in which employment patterns may be more concerned
with immediate profit enhancement.132
Similarly, there have been changes within the workforce serving the deathcare
industry. What was, largely, a field dominated by white males is becoming
increasingly open to women and minorities. There have also been changes in the
amount of education required for licensed funeral directors and embalmers. The
associate degree (2 years of college) with embalming school seems increasingly to
be the norm — with some states requiring further education and others requiring less.
The craft remains overwhelmingly non-union with individual bargaining between
employees (regardless of education level) and management — and, with management
becoming increasingly corporate and distant.
Although the work of embalmers (and, perhaps, of funeral directors where the
fields are not joined) is clearly technical, requiring significant levels of skill, the
Department of Labor has determined that it does not, in general, fit the concept of
professional as set forth in regulations implementing FLSA Section 13(a)(1): work
requiring “knowledge of an advance[d] type in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual instruction and
study, as distinguished from a general academic education and from an
apprenticeship. ...” In fact, the training/education of a funeral director or embalmer
seems more nearly to resemble that of a skilled worker — for example, a journeyman
electrician — acquired through on-the-job training and related instruction in an
academic setting.133
It might be argued that the DOL concept of professional (for Section 13(a)(1)
purposes) is obsolete and in need of revision. Such revision, if warranted, could be
effected through the rulemaking process or, directly, through legislative enactment.
Recent legislative proposals would have acted directly, providing a categorical

130 Fitch, 1998 in Review, pp. 26, 28.
131 “NFDA Lends Support To Congressional Proposal,” Mortuary Management, Nov. 1997,
p. 16.
132 See Nicole Blanchard, “Serving in the Deathcare Profession in an Independently
Owned/Operated Establishment,” Today In Deathcare, June 1999, p. 16. In her article, the
Richmond, VA funeral director explains with respect to the consolidators: “Performance
and loyalty from an employee are often overshadowed by what is most profitable for the
company. It’s a matter of culture,” she suggests. “Profitability is just as important in
independent firms but the employee answers to one person and not to a board of directors
and stockholders. In a smaller family owned setting,” she concludes, “professional
performance and loyalty to the company are important qualities ....”
133 Obviously, individual cases may differ and be viewed differently. The Rutlin case is one
example. Further, the changes implied by the new Section 13(a)(1) standard will need to be
taken into account.

exemption for employers of the targeted funeral directors and embalmers from FLSA
minimum wage and overtime pay requirements. Thus, there have been no qualifying
tests for exemption as is currently provided under Section 13(a)(1) of the act —
neither with respect to the worker nor the employer. With respect to the targeted
workers, the minimum wage and overtime pay protections of the FLSA would have
Licensing for funeral directors and embalmers is left to the states, with standards
differing in various ways from one jurisdiction to another. Requirements for securing
a license are left up to the states: some are stringent; others, far less so. The states
are also allowed to determine when a license is to be issued: that is, whether the
license functions, in effect, as an entry permit or a certification. Elimination of
minimum wage and overtime pay for licensed funeral directors and embalmers would
seem to set, arguably, a premium upon licensing a prospective funeral director or
embalmer early in the training process. For example, Tommy Metcalf of SCI and the
State Licensing Board of Texas, when questioned about increased educational
requirements for funeral directors, suggested that it could result in institution of “a
tier license program” as in the nursing field: i.e., practical nurse, licensed vocational
nurse, registered nurse, etc.134 In effect, the legislation (which does not define
“licensed” or set qualifications for being licensed) would transfer authority over
definition of the FLSA exemption from the Department of Labor (where it now rests
under Section 13(a)(1)) to the individual states. Thus, one impact could be for some
states to reduce the stringency of the licensing requirement, per se, while, at the same
time, mandating a period of post-licensing apprenticeship — thereby securing a
cheaper and more flexible body of workers.135 Much would depend upon the political
dynamics of the state which, under the proposed legislation, would potentially
become the arbiter of wage/hour standards for funeral directors and embalmers.
Apprenticeship requirements, like those for licensing, vary from one state to
another. Depending upon the jurisdiction, apprenticeship can be served before,
during or after mortuary school: usually through one to two years. A critical
question might be whether apprenticeship necessarily precedes licensure. Could a
license be awarded, under state regulation, following one’s academic training and
requisite board examinations but prior to completion of a term of apprenticeship?
For labor standards purposes, timing may be of some importance where the proposed
changes of law are concerned. Would apprenticeship be a pre-licensing requirement,
served at a time when the apprentice is protected under FLSA minimum wage and
overtime pay standards; or, would it be mandated as a post-licensing continuing
education requirement, served at a time when the apprentice would not be covered
by FLSA wage and hour protections? Unaddressed in the legislation, the issue would
be left to state regulatory boards.136

134 Metcalf, The $64,000 Question, p. 6.
135 Some have expressed concern about the phrasing “employed as” in the exemption,
suggesting that anyone doing the work of a licensed funeral director or embalmer could be
minimum wage and overtime pay exempt even though they might not actually be licensed.
136 Even if exempted from federal wage/hour coverage under the FLSA, licensed funeral
directors and licensed embalmers could be protected under state wage/hour law.

Restructuring and the advent of the new corporate philosophy of the
consolidators, some argue, has altered the economic and business focus of the
industry. The mega-firms, they contend, have a heightened need “to make the most
for their stockholders”137 and “to recoup acquisition costs.”138 To this end, it is
argued, they find it necessary to cut costs and enhance income by employing mass
“production techniques” and instituting economies of scale.139 These changes, in
turn, have caused many smaller independent firms to operate in an atmosphere of
increased fiscal and managerial pressure. One means of meeting these pressures
(though it would impact both large and small firms) would be to cut labor costs. An
exemption from the minimum wage and overtime pay requirements of the FLSA
could be viewed as a step in that direction. What benefits it might have for
individual workers may be less clear.
In the 108th Congress and Beyond
All at once, during the 108th Congress, the system seemed to change. Yet, on
the other hand, it may not have changed at all. The implications are somewhat less
than precise and may require deciphering.
Amendment of the FLSA
As during recent Congresses, proposals dealing with the minimum wage and
overtime pay treatment of licensed funeral directors and licensed embalmers were
introduced in the 108th Congress. Identical bills, H.R. 2065 (Tiberi) and S. 292
(Graham, S.C.), would have amended the FLSA by adding a new paragraph, Section
13(a)(4), which would directly exempt an employer of “any employee employed as
a licensed funeral director or a licensed embalmer” from the overtime pay and
minimum wage requirements of the act. There would be, under the proposal, no
exemption tests — neither of earnings nor of duties.
The bills were referred, respectively, to the House Committee on Education and
the Workforce and to the Senate Committee on Health, Education, Labor, and
Pensions. Neither bill was acted upon. Each died at the close of the 108th Congress.
But, if the past is any indication, one might expect to see additional bills proposed
with time.
Altering Department of Labor Regulations
On April 23, 2004, the Department of Labor promulgated new regulations
governing Section 13(a)(1) of the FLSA. The provision, as noted above, deals with
exemptions from overtime pay (and, by extension, of minimum wage) for certain
workers identified as executive, administrative, or professional. The exemption is
now in place.

137 James R. Fernald, “Funeral Service Industry,” Bangor Daily News, Apr. 21, 2000.
138 Fields, Grim Time for Funeral Firms, part C, p. 1.
139 Bryce, Merchant of Death, p. 61.

Under its terms, there is a two-fold test of exemption. First. It provides an
income test. If a person earns less than $23,660, he or she is automatically non-
exempt. The worker may also have been exempt under the prior arrangement because
of his or her duties. Second. If an employee is engaged in activity that is deemed by
the Department to be of a character suggestive of executive, administrative or
professional (and he or she earns in excess of $23,660), then he or she may also be
While the earnings test may have little impact (a good many funeral directors
and/or embalmers may earn more than $23,660), the duties test could have a
significant impact. Thus, are funeral directors and/or embalmers actually
professional as defined by DOL for exemption under Section 13(a)(1) — or merely
highly trained technicians?
John H. Fitch, representing the National Funeral Directors Association before
a committee of the Congress, explained the disparity between the Department and the
industry on the matter of overtime pay. “The NFDA’s position is based on the belief
that licensed funeral directors and embalmers comply with the duties test of the
current FLSA implementing regulations for professionals. The Department of
Labor,” he stated, “has historically disagreed with NFDA on this issue.” He
explained that “the final rule was changed slightly” but “it is the first time the
Department of Labor has recognized licensed funeral directors and embalmers as
The final rule provides: “Licensed funeral directors and embalmers who are
licensed by and working in a state that requires successful completion of four
academic years of pre-professional and professional study, including graduation from
a college of mortuary science accredited by the American Board of Funeral Service
Education, generally meet the duties requirements for the learned professional
exemption.”141 (Italics added.) However, since many embalmers do not meet the
requirements set down in the statute, it is not entirely clear how frequently the
exemption will be used. Conversely, since licensed funeral directors are treated
differently (just “licensed funeral directors...”), it may not be clear how often that
option will be used.

140 Testimony of John F. Fitch, National Funeral Directors Association, before a
Subcommittee, House Committee on Small Business, May 20, 2004, p. 14.
141 Federal Register, Apr. 23, 2004, p. 22266.

Table 3. Funeral Service: Education and Related Requirements
Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
AlabamaFuneral DirectorHigh school andNo CE2 years before,
and/ormortuaryrequirementafter, or
Embalmercollegecurrently in
AlaskaEmbalmerGraduation,No CE1 year
accredited requirement
mo r t u a r y
co llege
Funeral Director30 semesterNo CE1 year
hours, college orrequirement
uni ve r s i t y
ArizonaEmbalmerHigh school and12 hours per1 year after
mo r t u a r y year school
co llege
Funeral DirectorHigh school and12 hours per1 year after
mo r t u a r y year school
college; 1 year
licensure and
ArkansasEmbalmerHigh school and8 hours per year1 year, before or
mortuaryafter school
co llege
Funeral DirectorHigh school8 hours per year2 years (except
with mortuary
school, then 1
year before or
after school)
CaliforniaEmbalmerHigh school and14 hours per 22 years before,
mortuaryyearsduring or after
co llege school
Funeral DirectorOnly business14 hours per 22 years before,
entities areyearsduring or after
licenced school
Co l o r a d o N o ne Co nt a c t N o ne Co nt a c t
Colorado BoardColorado Board
ConnecticutEmbalmer andHigh schoolNo EC1 year

Funeral Directorplus associaterequirement
degr ee,
mo r t u a r y
sc ie nc e

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
DelawareFuneral DirectorHigh school or10 hours per 21 year after
e q ui va l e nt ; years school
asso ciate
degr ee,
mo r t u a r y
sc ie nc e
District ofFuneral ServiceHigh school andNo CE1 year after
Co lumb ia mo r t u a r y requirement school
co llege
FloridaFuneral DirectorHigh school, 12-12 hours per 21 year after
and/ormonth mortuaryyears;school
Embalmer co llege HIV/AI DS
program. cour se
High school,
asso ciate
degr ee,
mo r t u a r y
sc ie nc e
GeorgiaFuneral DirectorHigh school,10 hours, every18 months,
and/ormortuary2 yearsbefore or after
Embalmercollege (18school
mo nt hs)
HawaiiEmbalmerOne of threeNo CENone indicated
choices: requirement
(a) 1 year
gr a d ua t i o n,
school of
embalming; (b)
2 years practical
experience, high
school; (c) 5
years practical
IdahoMortician2 years college,No CE1 year, before or
plus mortuaryrequirementafter school
co llege
IllinoisFuneral Director30 semester12 hours,1 year after
and Embalmerhours of collegeFuneralschool

credit plusDirector; 24
mortuaryhours, Funeral
college orDirector/Em-
associate orbalmer per 2
bachelor’s years
degree in
mo r t u a r y
sc ie nc e

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
IndianaFuneral Director1 year college,10 hours per 21 year after
and Embalmerplus mortuaryyearsschool
co llege
IowaFuneral Director60 semester24 hours per 21 year after
hours, college;yearsschool
plus course,
mo r t u a r y
sc ie nc e
(cur ricula
sp ecified)
KansasEmbalmerAssociate6 hours per year1 year after
degree innational board
mo r t u a r y exam
sc ie nc e
Funeral Director60 semester6 hours per year1 year prior to
hours, collegetaking board
(20 of which areexam
defined by state
KentuckyEmbalmerAssociate4 hour per year3 years total
degr ee (asso ciate
degree counts
for 2 years)
Funeral DirectorHigh school4 hours per year3 years total (30
semester hours
can substitute
for 1 year)
LouisianaEmbalmerHigh school4 hours per year1 year, before or
plus mortuaryafter school
science program
Funeral DirectorHigh school4 hours per year1 year, before or
plus 30 semesterafter school
hours college
MaineFuneral1 year college,12 per 2 years1 year before or
Director,plus mortuaryafter school
Embalmer andcollege or
Funeral Serviceassociate degree
Co mb inatio n
MarylandFuneral DirectorAssociate12 hours per 21,000 hours
and Embalmerdegree,years
mo r t u a r y
sc ie nc e
MassachusettsFuneral DirectorHigh school,5 CEUs per year2 years, before
and Embalmerplus mortuaryor after school

co llege

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
MichiganMortuary2 years ofNo CE1 year after
Science Licensecollege,requirementcompletion,
c ur r i c ul um mo r t u a r y
specified, plus 1college
year of mortuary
co llege
MinnesotaMortuaryBachelor of12 hours per 21 year
Science LicenseScience, majoryears
in mortuary
sc ie nc e
MississippiFuneral ServiceHigh schoolNo CE1 year, before or
Licenseplus mortuaryrequirementafter school
co llege
Funeral DirectorHigh schoolNo CE1 year plus 1
requirementyear internship
Missouri EmbalmerHigh school,No CE1 year
plus mortuaryrequirement
co llege
Funeral DirectorHigh SchoolNo CE6 months; plus 6
requirement mo nt hs
inter nship
MontanaMorticians2 years college,6 hours per year,1 year after
Licenseplus mortuary12 hours per 2school
co llege years
NebraskaFuneral Director60 semesters of16 hours per 26 months before
and Embalmercollege credit,yearsand 6 months
curriculumafter, or 1 year
specified, plusof mortuary
mo r t u a r y school
co llege
NevadaEmbalmer2 years ofNo CE1 year before or
college, plusrequirementafter school
mo r t u a r y
co llege
New HampshireFuneral Director1 year of15 hours per 21 year before or
and Embalmercollege, plusyearsafter school
mo r t u a r y
co llege
New JerseyFuneral Director2 years college,10 hours per 22 years before,
plus 1 year ofyearsduring or after
mortuaryschool (1 year
collegecredit for
New MexicoFuneral Service2 years college,10 hours per1 year

Practitionerplus mortuaryNM fiscal year
License co llege

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
New YorkFuneral Director60 semesterNo CE1 year residency
credit hours, orrequirementafter school
90 quarter credit
hours from
funeral service
institutio n
North CarolinaFuneral DirectorHigh school5 hours per year1 year before or
and Embalmer,plus 32 semesterafter school
Funeral Servicehours from, or
Licensebe a graduate of,
a mortuary
science college
North DakotaEmbalmer2 years ofNo CE1 year after
co llege requirement school
OhioEmbalmerBachelor’s12 hours every 21 year after
degree, plus 12-yearsmortuary school
month mortuary
Funeral DirectorBachelor’s12 hours every 21 year after
degreeyearsmortuary school
OklahomaFuneral Director60 collegeNo CE1 year during or
and/orhours, includingrequirementafter school
embalmerspecific courses
from regionally-
institution, plus
graduate from
mo r t u a r y
co llege
OregonFuneralAssociateNo CE1 year
P r actitio ne r degr ee requirement
EmbalmerHigh schoolNo CE1 year
plus mortuaryrequirement
co llege
PennsylvaniaFuneral Director2 years ofNo CE1 year after
co llege , requirement school
c ur r i c ul um
specified; plus
mo r t u a r y
co llege
Rhode IslandFuneral DirectorHigh school,No CENot less than 1
and Embalmerplus 60 semesterrequirementyear before or
hours fromafter school

mo r t u a r y
science school

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
South CarolinaFuneral DirectorHigh school,3 hours per year2 years before
and Embalmerplus mortuaryor after school
co llege
Funeral DirectorHigh school3 hours per year2 years before
plus 1 yearor after school
mo r t u a r y
college, or 2
years of college,
c ur r i c ul um
sp ecified
South DakotaFuneral Service2 years ofNo CE1 year before or
collegerequirementafter school in
(specifiedSouth Dakota
c ur r i c ul um) ,
plus mortuary
co llege
TennesseeEmbalmerHigh school10 hours per1 year
plus mortuaryyear
co llege
Funeral DirectorHigh school10 hours per2 years
TexasFuneralHigh school,14 hours per 21 year after
Director,plus mortuaryyearsschool
Embalmer co llege
UtahFuneral DirectorAssociate10 hours per 21 year before or
and Embalmerdegree inyearsafter school
mo r t u a r y
sc ie nc e
VermontEmbalmerGraduation, 2-6 hours per 21 year before or
year school ofyearsafter school
funeral service;
or completion
of not less than
one academic
year with 30
additional credit
hours in
sp ecified
c ur r i c ul um.
Funeral DirectorAssisted in6 hours per 21 year before or
direction 30yearsafter school

funerals under
the supervision
of a licensed
funeral director
or embalmer

Co nt inuing
Educa t io na l educa t io n
JurisdictionType of licenserequirementsrequirementsApprenticeship
VirginiaFuneral ServiceHigh schoolNo CE18 months
plus mortuaryrequirementbefore or after
co llege school
WashingtonEmbalmer60 semester10 hours per 22 years training
hours of collegeyearsunder a licensed
includingembalmer in this
mo r t u a r y sta t e
co llege
Funeral DirectorAssociate10 hours per 21 year training
degree,yearsunder licensed
mortuaryfuneral director
science; or,in this state
completion of
not less than 2
years of college
West VirginiaFuneral DirectorAssociate3 hours per 31 year before or
and Embalmerdegree; or, yearsafter school
about 2 years
college in a
declared field,
prior to
obtaining a
diploma of
graduation from
a school of
mo r t u a r y
sc ie nc e
WisconsinFuneral Director2 years of15 hours per 21 year before or
collegeyearsafter mortuary
(specifiedschool; must
curriculum),have sophomore
plus mortuarystanding for
co llege apprenticeship
WyomingFuneral DirectorNoneNo CENone
Embalming1 year college,No CE1 year before or
plus 1 year ofrequirementafter schooling
mortuaryserved in
co llege Wyoming
Source: Material is adapted from the website of the National Funeral Directors Association, which
may be found at [], from fall 1999. This is a general
representation of basic requirements. Some concepts may require further definition. For additional
information, contact the various state regulatory boards.