A: Schools and institutions of higher education are generally covered by the FLSA's minimum wage and overtime provisions. 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. Fact Sheet #17D: Exemption for Professional Employees Under the Fair Labor Standards Act (FLSA) Revised September 2019 *Note: The Department of Labor revised the regulations located at 29 C.F.R. Faculty members who are engaged as teachers but also spend a considerable amount of their time in extracurricular activities such as coaching athletic teams or acting as moderators or advisors in such areas as drama, speech, debate or journalism are engaged in teaching. Bill is a partner at Franczek P.C. 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. The specific requirements for exemption as a bona fide professional employee are summarized below. Graduate teaching assistants whose primary duty is teaching are exempt. This exemption does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. 29 U.S.C. In addition to the examples listed in FOH 10b03(e) [which relates to students participating in activities such as drama, musical groups, radio stations, and athletics], students serving as residence hall assistants or dormitory counselors, who are participants in a bona fide educational program, and who receive remuneration in the form of reduced room or board charges, free use of telephones, tuition credits, and the like, are not employees under the Act. 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 minimum wage and overtime compliance. These employees are generally considered professional employees and are subject to the salary threshold for exemption from overtime. Contacting Coffield PLC or Tim does not create an attorney-client relationship. If you qualify to exclude days of presence as a teacher or trainee, you must file a fully-completed Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition, with the IRS. The duties of employees vary widely, and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. OEA Non-Teachers Employees. 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. As used in the FLSA regulations, primary duty means the principal, main, major or most important duty that the employee performs. If a bona fide teacher meets this duty requirement, the salary level and salary basis tests do not apply. Exercise discretion and independent judgment in the performance of . distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. 29 CFR 541.303(d), Educational establishments include elementary or secondary school systems, an institutions of higher education, or other educational institutions. The employees primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; The advanced knowledge must be in a field of science or learning; and. Further complicating matters, there is an ongoing pitched battle over whether graduate assistants, teaching assistants and similar student employees should be considered employees permitted to form unions under state and federal labor law. . ol{list-style-type: decimal;} If the public university or college qualifies as a public agency, nonexempt employees generally may not accrue more than 240 hours of comp time. Non-employee for the purposes of the FLSA - a fellowship does not create an employment relationship. However, if residence hall directors are re-classified as non-exempt employees, colleges and universities may be . .manual-search ul.usa-list li {max-width:100%;} Students will be responsible for the difference in annual premium of $300.00. See29 C.F.R. 541.602(a)(5). 106-F Melbourne Park Circle Charlottesville, VA 22901 The University considers a Teaching Assistant (TA) or Research Assistant (RA) as a graduate student who is involved in the following teaching or research activities: . Exempt vs. non-exempt employee status is determined by three tests. 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 educational requirements and skills differ for the many roles and positions in Head Start and Early Head Start programs. FLSA Overview. As such, the Department will not assert such workers are entitled to overtime. 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. .manual-search-block #edit-actions--2 {order:2;} 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 . If you have questions about any particular issue or problem, you should contact your attorney. Given these standards, professors, instructors, and adjunct professors typically qualify for this exemption. Educational establishments include elementary school systems, secondary school systems, institutions of higher education, and other educational institutions. But a coach will not qualify for the exemption if his or her primary duties are recruiting students to play sports or visiting high schools and athletic camps to conduct student interviews. 541.204(b . 541.303(d),541.600(e). 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. Temporary employees include, but are not limited to, hourly, summer employees and interns. This post will focus on the exemption for professional employees. Drive Your Organization Forward While Empowering Employees, 4 HR Trends to Support Employees in 2023 and Beyond, Amplifying Employee Behavioral Health Through Primary Care. 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. and have job duties that satisfy certain requirements. Band directors would qualify under the teacher exemption and are not subject to the rules change. Employment Matters, Next: 541.100. 2022- 2023 Student Academic Titles and Pay Rates 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. However, if such assistant managers are closely supervised and earn little more than the nonexempt employees, the assistant managers generally would not satisfy the primary duty requirement. 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. 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. Chapter 10 of the U.S. Department of Labors Field Operations Handbook(.pdf) provides some guidance on this subject. Therefore, exempt workers do not receive overtime pay and their weekly pay stays the same even if they work fewer than 40 hours in a week. Various employees at higher educational institutions may qualify as exempt administrative employees. Student employees hold positions reserved only for university students. Exempt employees are those whose duties and responsibilities exempt them from statutory overtime pay provisions. 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 . 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 Labor's implementing regulations. Also, for purposes of the exemption, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit. 29 CFR 541.302(c). WHD will continue to enforce the 2004 part 541 regulations through December 31, 2019, including the $455 per week standard salary level and $100,000 annual compensation level for Highly Compensated Employees. Bill also regularly counsels employers on issues relating to the Family and Medical Leave Act (FMLA), disability and accommodations. This site is intended to provide general information only. #block-googletagmanagerheader .field { padding-bottom:0 !important; } 29 U.S.C. Your email address will not be published. Employment of teacher assistants is projected to grow 5 percent from 2021 to 2031, about as fast as the average for all occupations. Under federal tax law, a University employee who receives a graduate school tuition waiver in excess of $5,250 in a calendar year must treat the excess amount as additional . 1. Are band directors subject to the rules change? 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. According to the Fair Labor Standards Act passed in 1938, teachers are designated as salaried employees. 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. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing. Were trying to verify that teachers are exempt when it comes to new overtime regulations? For some organizations, the in-person work experience remains a vital part of their business operation, corporate culture, [], Grow your employees careers inside your organization and improve long-term talent retention with the latest report from the Cornerstone People Research Lab and Lighthouse Research & Advisory. Eligible OPS/Temporary employees are covered under the Federal Family and Medical . Whether the organization is a school, college or university depends on the organization's primary function. There are three categories of graduate assistant: teaching assistant (TA), research assistant (RA), and administrative assistant (AA).