The duties test is where things start to get complicated. Exercise discretion and independent judgment in the performance of . As used in the FLSA regulations, primary duty means the principal, main, major or most important duty that the employee performs. The Department of Labor is also an excellent resource for information about the professional employee exemption. If you have questions about any particular issue or problem, you should contact your attorney. ol{list-style-type: decimal;} Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which must include at least $684* per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption. The U.S. Department of Labor (DOL) issued two opinion letters addressing whether an employer properly classified account managers as exempt from overtime pay and whether a private religious day . Teachers that are exempt include, but are not limited to: Faculty members who are teachers but also spend a considerable amount of their time in extracurricular activities, such as coaching athletic teams or acting as an advisor in drama, speech, debate, or journalism qualify for the professional exemption. Student employees hold positions reserved only for university students. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers. The FICA exemption also applies to students enrolled on less than a half-time basis if the student requires less than the above standards to complete the degree . Teachers who possess a teaching certificate generally qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the State to refer to different kinds of certificates. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labors implementing regulations. 29 CFR 541.302(d). On the other hand, licensed practical nurses, accounting clerks, bookkeepers, and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. The learned professional exemption also does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. Fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning. Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent (as opposed to work which depends primarily on intelligence, diligence and accuracy). You are not "legal." Generally preschool teachers are Last month, a federal judge in New York granted preliminary approval for a settlement in which Hofstra University agreed to pay up to $485,000 to a class of 256 undergraduate and graduate students who allegedly were not paid minimum wage and overtime in violation of the Fair Labor Standards Act. The information you obtain at this site is not legal advice, is not intended to be legal advice, and does not create an attorney-client relationship. Y26NN. Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent. FLSA Overview. Professional exemption. The FLSA requires that most employees in the United States be paid at least thefederal minimum wagefor all hours worked andovertime payat not less than time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. To qualify for the learned professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week, and meet all of the following requirements: As used in the FLSA regulations, primary duty means the principal, main, major or most important duty that the employee performs. OSTA Unit 1 (Troopers) OSTA Unit 15 (Sergeants) The job assignment, work schedule and duration of the position will be determined on an individual basis. may not work for the . This fact sheet provides information on the exemption from minimum wage and overtime pay provided by Sections 13(a)(1) of theFLSAas defined by Regulations,29 C.F.R. is a labor and employment boutique law firm representing private and public sector employers in all aspects of labor and employment law, including counseling and compliance, employment litigation, union-related matters, and employee benefits. Franczek P.C. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. The FLSA and the State Minimum Wage Act exempt employees working in a bona fide professional capacity from the overtime pay requirements . Graduate and doctoral students may be employed as teaching assistants, instructional assistants, research assistants, or graduate assistants in a non-exempt status* from the Fair Labor Standards Act (FLSA). To be considered exempt under the 2022 California professional exemption, the employee must: Earn a salary of more than $54,080 per year; Perform tasks which are intellectual, creative, and vary in nature (as opposed to routine mental, manual, mechanical, or physical work); and. An employee who is regularly scheduled to work less than 30 hours per week is considered a regular part-time employee. There are two general types of exempt professional employees: learned professionals and creative professionals. Therefore, a teacher who is not certified may be considered for exemption, provided that such individual is employed as a teacher by the employing school or school system. 10. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Technology is the intersection of an enhanced employee experience and proactive HR. Exempt Employees . The employee must receive compensation that satisfies the above-referenced salary basis and salary level tests; The employees primary duty must be managing the enterprise or a customarily recognized department or subdivision thereof; The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent (for example, one full-time and two half-time employees); and. The employees primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Postdoctoral fellows, who conduct research at a higher education institution after completing their doctoral studies, likewise generally meet the duties requirements of the learned professional exemption, and they may additionally qualify for the teacher exemption if teaching is their primary duty. p.usa-alert__text {margin-bottom:0!important;} Employees who work in higher education but whose work does not relate to the educational field (such as work in general business operations) do not qualify as exempt academic administrative employees. Graduate Assistant (non-exempt) - Job Code 9185. Before sharing sensitive information, make sure youre on a federal government site. Head coaches are generally exempt as "teachers." Assistant coaches may be "teachers," but it depends on their actual duties. Public universities or colleges that qualify as a public agency under the FLSA may compensate nonexempt employees with compensatory time off (or comp time) in lieu of overtime pay. This fact sheet provides information on the exemption from minimum wage and overtime pay provided by Section 13(a)(1) of the FLSA as defined by Regulations, 29 C.F.R. The regs define work requiring advanced knowledge as work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. Professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work. .cd-main-content p, blockquote {margin-bottom:1em;} Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. The salary and salary basis requirements do not apply to bona fide teachers. A faculty member who teaches online or remotely also may qualify for this exemption. Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes, Virginia Values Act: Powerful Protections for Virginia Employees, Virginia Civil Air Patrol Leave Law: Protections for Employees Who Are Civil Air Patrol Volunteers, EEOC v. Abercrombie & Fitch Stores, Inc.: Title VII Gives Favored Treatment to Employees Religious Practices, Torres v. Texas Dept of Pub. The regulations specifically provide that the minimum salary is "exclusive of board, lodging or other facilities," meaning that any such benefits cannot be counted toward the $913 minimum. Today employees need and want comprehensive whole health benefits more than ever. An exempt employee is not eligible to receive overtime pay, and is excluded from minimum wage requirements. Temporary employees working at AACPS accrue paid leave if they work at least 24 hours in a pay period. Work Schedule The fact sheet provides an overview of the general requirements for "white collar" exemptions (i.e., bona fide executive, administrative, and professional employees) and a detailed description of the exemptions for more common higher education jobs (e.g., teachers, coaches, student-employees), as set forth more fully below. .usa-footer .grid-container {padding-left: 30px!important;} If a bona fide teacher meets this duty requirement, the salary level and salary basis tests do not apply. Private higher education institutions may not pay employees comp time in lieu of overtime pay. An assistant manager can supervise employees and serve customers at the same time without losing the exemption. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing. 29 CFR 541.301(d). An agency within the U.S. Department of Labor, 200 Constitution Ave NW Are we legal? Coaches are classified as nonexempt employees and eligible to receive time and in overtime pay (OT) for all hours worked over 40 in a work week. Paid leave for temporary employees is accrued at the rate of one (1) hour for every 30 hours worked in a pay period. Substitute Teachers/Substitute Educational Assistants hired to substitute for licensed teachers or educational assistants on an as-needed basis are not entitled to receive benefits or leave unless specifically stated. The employees primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (as opposed to routine mental, manual, mechanical or physical work). An employee, other than a substitute teacher/substitute educational assistant, who is regularly scheduled to work at least 30 hours per week, is considered a regular full-time employee. The salary and salary basis requirements do not apply to bona fide teachers. 541.204(b . These affected teachers would be newly eligible for overtime pay unless their employers raise their pay to at least the salary threshold in order for them to remain exempt. The U.S. Department of Labor addressed this in a Q&A on the new overtime regulations (referred to as the Final Rule in the Q&A): Q: Is there an exemption for schools and institutions of higher education from either the FLSA or the Departments overtime regulations governing white collar workers? div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} On the other hand, licensed practical nurses, accounting clerks, bookkeepers, and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. Instead, they are not eligible for overtime if they are paid at least as much as the entrance salary for teachers at their institution. . 541.204. This site is intended to provide general information only. Nonexempt employees are entitled to be paid at least $7.25 per hour and be paid at least one and one-half (1.5) times the employee's regular hourly rate for work performed in excess of forty (40) hours per workweek. .agency-blurb-container .agency_blurb.background--light { padding: 0; } When determining whether a college or university is a political subdivision, the Department considers whether (1) the State directly created the entity, or (2) individuals administering the entity are responsible to public officials or the general electorate. Graduate assistants may hold 9.5 (generally used for graduate teaching assistants) or 12 month (generally used for administrative or research assistants) appointments. Please view the full disclaimer. Various positions in higher education institutions might qualify for the executive exemption, including deans, department heads, directors, and any other manager or supervisor whose job duties and compensation satisfy the above criteria. .h1 {font-family:'Merriweather';font-weight:700;} 2. Professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. In higher education, examples of exempt non-teacher learned professionals generally include certified public accountants, psychologists, certified athletic trainers, and librarians. Based on this information, it appears the teaching fellow in your inquiry would not be subject to the new salary requirement if he or she is a bona fide teacher as outlined above. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. In addition, the administrative personnel that help run higher education institutions and interact with students outside the classroom, such as department heads, academic counselors and advisors, intervention specialists and others with similar responsibilities are subject to a special salary threshold that does not apply to white-collar employees outside of higher education. Attach Form 8843 to your U.S. federal income tax return for the tax year. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} As businesses continue to evaluate what their workforce needs in an employee-centric tomorrow, the need for strategic human resource management grows. However, the word customarily means the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Job Code Title 1/2 Time - 50% 1/4 Time -25%; 9000 Graduate Teaching Assistant $859.76 (mo.) OEA Non-Teachers Employees. Download the Pay Rate Tables. Coffield PLC provides aggressive and personalized legal representation to individual employees and groups of employees in Virginia and North Carolina. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. The employees primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Parts of this site may be considered attorney advertising. Drive Your Organization Forward While Empowering Employees, 4 HR Trends to Support Employees in 2023 and Beyond, Amplifying Employee Behavioral Health Through Primary Care. With that being said, the Department of Labor shed some insight as to whether a college coach could be deemed a "teacher" and thereby exempt. Regular Full-time Employees. Required fields are marked *. Employment Matters, Next: Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school pupils . The FLSA provides for several kinds of exempt professional employeessuch as learned professionals, creative professionals, teachers, and employees practicing law or medicine. 1. The regs further provide that an employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. Coffield PLC and attorney Tim Coffield welcome your calls, emails, and contact forms. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or. Categories of exempt employees at Smith College include the following: . #block-googletagmanagerheader .field { padding-bottom:0 !important; } Parts of this site may be considered attorney advertising. An "exempt" position is not eligible for overtime pay. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. One of the main differences between exempt employees and non-exempt employees is that exempt employees receive a salary for the work they perform, while non-exempt employees earn an hourly wage. Determination of an employees primary duty is based on all the facts in a particular case, with the major emphasis on the character of the employees job as a whole. Updated Daily. Graduate Assistant (exempt) - Job Code 9550. Because they qualify for the teacher exemption, they are not subject to the salary basis and . They get double-time compensation if they work more than 12 hours in a single day, regardless of their weekly total hours. The New FLSA Regulations . 29 CFR 541.302(a). (505) 880-3700, Student Service Center These employees are generally considered professional employees and are subject to the salary threshold for exemption from overtime. Non-employee for the purposes of the FLSA - a fellowship does not create an employment relationship. Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which, as of January 1, 2020, must include at least $684 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee. Reporters also do not qualify as exempt creative professionals if their work product is subject to substantial control by the employer. Elementary and secondary schools include day or residential schools that provide elementary or secondary education, as determined under state law. Given these standards, professors, instructors, and adjunct professors typically qualify for this exemption. Teaching assistants; . Safety: States Do Not Have Sovereign Immunity Against Damages Claims for Servicemember Discrimination Under USERRA. Were trying to verify that teachers are exempt when it comes to new overtime regulations? Customarily and regularly means a frequency that must be greater than occasional but which may be less than constant. It includes work normally and recurrently done every workweek; it does not include isolated or one-time tasks. invention, imagination, originality or talent. An employee hired under these conditions will be considered a short-term employee. This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. For additional information, visit our Wage and Hour Division Website: http://www.dol.gov/agencies/whd and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). Under such circumstances, WH will not assert an employee-employer relationship between the students and the school, or between the student and the grantor or contracting agency, even though the student receives a stipend for their services under the grant or contract. If you have questions about any particular issue or problem, you should contact your attorney. The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime standards employees who qualify as professional employees. Exempt from Orders (under "Professional" employee classification.) This primary duty test has three elements: The employee must perform work requiring advanced knowledge; The advanced knowledge must be in a field of science or learning; and. Because the case was settled, the court never reached a judgement as to whether the students who received stipends were employees entitled to minimum wage and overtime under the FLSA. The best evidence of meeting this requirement is having the appropriate academic degree. The specific requirements for exemption as a bona fide professional employee are summarized below. 29 CFR 541.303(a), A teachers who possess a teaching certificate or license and engages in teaching as required qualifies for the exemption regardless of the type of license possessed ( e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited). 29 CFR 541.303(c). Although a preschool may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs of the facilitys children would not meet the requirements for the exemption as a bona fide teacher. However, if residence hall directors are re-classified as non-exempt employees, colleges and universities may be . Teachers. Both full-time and part-time Assistant Teachers are non-exempt, hourly employees, eligible for full benefits (paid time-off, health/dental/vision coverage, etc.) However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator. Copyright 2023 Coffield PLC. This exemption does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. Thus, for example, the learned professional exemption may be available to the occasional lawyer who did not go to law school, or the occasional chemist who does not have a degree in chemistry. NE 2023 BLR, a division of Simplify Compliance LLC 5511 Virginia Way, Suite 150 Brentwood, Tennessee 37027 800-727-5257 All rights reserved. 541.303. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine. About 153,700 openings for teacher assistants are projected each year, on average, over the decade. To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (as of January 1, 2020) and have job duties that satisfy certain requirements. As a general rule, the less educational value the job has for the student, the more likely it is that the student will be considered an employee for wage and hour purposes. In regards to the exempt status of teachers, would this include a Charter School teacher or are Charter schools treated differently? 29 CFR 541.303(c), State Laws Federal Laws Topics Articles Resources, FLSA Minimum Wage and Overtime Exemptions, Impact of Responsibility for Extracurricular Activities. part 541 with an effective date of January 1, 2020. The employee will be informed of the nature and duration of the assignment A short-term employee does not become a regular full-time employee by virtue of being employed longer than the agreed upon specified period. Whether the exemption applies, therefore, must be determined on a case-by-case basis. .manual-search ul.usa-list li {max-width:100%;} (a) University or college students who participate in activities generally recognized as extracurricular are generally not considered to be employees within the meaning of the Act. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); As organizations and workforces around the world continue charting their course ahead for 2023 and beyond, many are finding that while remote work was sustainable the past two years, it may not be a long-term recipe for success. A "non-exempt" position is eligible and must receive overtime pay at time-and-one-half for any hours worked above 40 hours in one workweek. In higher education institutions, exempt academic administrative personnel generally include department heads, intervention specialists who are available to respond to student academic issues, and other employees with similar responsibilities. The exemption could likewise apply, for example, to an agricultural extension agent who is employed by an educational establishment to travel and provide instruction to farmers, if the agents primary duty is teaching, instructing, or lecturing to impart knowledge. If you have questions about any particular issue or problem, you should contact your attorney. Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments, https://www.federalregister.gov/documents/2019/09/27/2019-20353/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and, The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684. .cd-main-content p, blockquote {margin-bottom:1em;} There are three general types of exempt professional employees: learned professionals, creative professionals, or teaching professionals. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labors implementing regulations. Work requiring advanced knowledge means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. If the public university or college qualifies as a public agency, nonexempt employees generally may not accrue more than 240 hours of comp time. At the same time the new overtime regulation was published, the DOL also published Guidancefor Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act. .manual-search ul.usa-list li {max-width:100%;} Student assistants who are unionized or who are otherwise recognized as employees by a college or university for other purposes should be treated as such for purposes of .
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