US Department of Labor Releases New Fact Sheet for Higher Ed on Overtime Pay

On April 12, 2018, the US Department of Labor (USDOL) released Fact Sheet #17S describing the overtime pay requirements under the Fair Labor Standards Act (FLSA) for teachers, coaches, and other workers in higher education institutions. Please note at the outset that the fact sheet incorporates a great deal of the principles and language set forth in the USDOL's "Guidance for Higher Education Institutions on Paying Overtime Under the Fair Labor Standards Act," issued on May 18, 2016.

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. The fact sheet also provides an overview of the circumstances in which public universities and colleges that qualify as "public agencies" under the FLSA may compensate non-exempt employees with compensatory time off, commonly referred to as "comp time," in lieu of overtime pay.

The following are some highlights from the fact sheet:

Teachers: A teacher is exempt if his/her primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge and if he/ she is performing that duty as an employee of an educational establishment. Educational establishments include elementary school systems, secondary school systems, institutions of higher education, and other educational institutions. If a bona fide teacher meets this duty requirement, the salary level and salary basis tests do not apply. Given these standards, professors, instructors, and adjunct professors typically qualify for this exemption. A faculty member who teaches online or remotely also may qualify for this exemption.

The regulations do not restrict where bona fide teaching may take place, to whom the knowledge can be imparted, or how many hours a teacher must work per week to qualify for the exemption. The exemption would therefore ordinarily apply, for example, to a part-time faculty member of an educational establishment whose primary duty is to provide instruction through online courses to remote non-credit learners. 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 with the primary duty of teaching, instructing, or lecturing to impart knowledge.

To determine a teacher's primary duty, the relevant inquiry in all cases is the teacher's actual job duties. Job titles or full- or part-time status alone do not determine exempt status. A teacher does not become non-exempt merely because he/she spends a considerable amount of time in extracurricular activities (such as coaching athletic teams or supervising student clubs), provided the teacher's primary duty is teaching.

Coaches: Athletic coaches employed by higher education institutions may qualify for the teacher exemption. After all, teaching may include instructing student-athletes in how to perform their sports. But a coach will not qualify for the exemption if his/her primary duties are recruiting students to play sports or visiting high schools and athletic camps to conduct student interviews. The amount of time the coach spends instructing student-athletes in a team sport is relevant but is not the exclusive factor in determining the coach's exempt status.

Academic Administrative Employees: There are specific regulatory provisions for certain administrative employees"”known as "academic administrative employees""”whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. To be exempt as an academic administrative professional:

1. The employee must satisfy the above-referenced salary basis and salary level tests or receive a salary of at least the entrance salary for teachers in the same educational establishment.
2. The employee's primary duty must be to perform administrative functions directly related to academic instruction or training in an educational establishment.

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. 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. Exempt administrative personnel would likewise generally include academic counselors who administer school testing programs, assist students with academic problems, and advise students concerning degree requirements. Again, whether an employee satisfies the duties test for these exemptions depends on the employee's actual job duties, not just the employee's job title.

Student-Employees: As a general matter, most students who work for their college or university are hourly non-exempt workers and do not work more than 40 hours per week. The following, however, are examples of students who often receive a salary or other non-hourly compensation:

• Graduate Teaching Assistants: Graduate teaching assistants whose primary duty is teaching are exempt. Because they qualify for the teacher exemption, they are not subject to the salary basis and salary level tests.
• Research Assistants: Generally, an educational relationship exists when a graduate or undergraduate student performs research under a faculty member's supervision while obtaining a degree. Under these circumstances, the USDOL would not assert that an employment relationship exists with either the school or any grantor funding the student's research. This is true even though the student may receive a stipend for performing the research.
• Student Residential Assistants: Students enrolled in bona fide educational programs who are residential assistants and receive reduced room or board charges or tuition credits are not generally considered employees under the FLSA. They therefore are not entitled to minimum wages and overtime under the FLSA.

An employment relationship will generally exist when a student receives compensation and his/her duties are not part of an overall education program. For example, students who work at food service counters, sell programs or usher at events, or wash dishes in dining halls and anticipate some compensation (for example, money or meals) are generally considered employees entitled to minimum wage and overtime compensation.

The full version of Fact Sheet #17S is available here.