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. The plaintiff class included both students who the University classified as hourly employees and others who received stipends as undergraduate and graduate assistants. .h1 {font-family:'Merriweather';font-weight:700;} The regs indicate the best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. 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. Students who perform work that is closely tied to the institutions educational program, such as research assistants, can often be treated as non-employees even if they are paid a stipend or receive other compensation such as tuition credits or reduced room and board charges. 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 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. In California, for example, non-exempt employees must be paid overtime if they work more than eight hours in a single day. Fair Labor Standards Act (FLSA) | Human Resources The Difference Between Exempt vs. Non-Exempt Employees - Indeed Several provisions apply, however, to many employees at these institutions that exempt them from the Final Rule. Unfortunately the answer to that is no. The DOLs implementing regulations with respect to the professional employee exemption are generally located at 29 CFR 541.300-304. Typically, such education includes the curriculums in grades 1 through 12 and may include introductory programs such kindergarten and nursery school. The wage and hour team at Franczek PC created this blog to provide timely, practical insights on wage and hour law to employers. *By Appointment Only. To qualify for the executive exemption, an employee must satisfy the following tests: See29 C.F.R. The guidance notes that the salary level and salary basis requirements for the white collar exemption do not apply to bona fide teachers. 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. 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 Department of Labor is also, for information about the professional employee exemption. The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. ol{list-style-type: decimal;} DOL has been working closely with NIH and NSF regarding their mutual interest in this area. Contacting Coffield PLC or Tim does not create an attorney-client relationship. 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. Employment of teacher assistants is projected to grow 5 percent from 2021 to 2031, about as fast as the average for all occupations. Ohio Health Care. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine. The FLSA and the State Minimum Wage Act exempt employees working in a bona fide professional capacity from the overtime pay requirements . The Department of Labor is also an excellent resource for information about the professional employee exemption. 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. 29 CFR 541.302(c). Parts of this site may be considered attorney advertising. Flexible work arrangements must be memorialized in writing and comply with all legal requirements, including that non-exempt (bi-weekly) employees keep track of their actual hours worked and receive overtime pay if they work in excess of 40 hours in a work week. Employment Categories | Smith College Frequently Asked Questions about the FLSA Rules Changes #block-googletagmanagerheader .field { padding-bottom:0 !important; } The salary and salary basis requirements do not apply to bona fide teachers. The law specifically distinguishes teaching assistant and graduate assistant positions which qualify for the FICA exemption (provided that the above half-time standards are satisfied). 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. 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. 2. PDF Fair Labor Standards Act (FLSA) Changes Frequently Asked Questions Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school pupils . 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. 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. However, the word customarily means the exemption may also 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. are generally considered employees under the Act. 29 CFR 541.301(e . Thus, for example, newspaper reporters who simply rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. p.usa-alert__text {margin-bottom:0!important;} The employees primary duty must be the performance of work requiring advanced knowledge; The advanced knowledge must be in a field of science or learning; and. Employees working under flexible work arrangements are required to satisfactorily . 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. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. An employees qualification for the exemption depends on his or her actual job duties; job titles alone are not sufficient for determining whether an employee satisfies the duties test. Y41NN. For every hour worked over 40 during UF's workweek, hourly non-exempt OPS employees must be paid 1 1/2 times their . Job titles or full/part-time status alone do not determine exempt status. part 541 with an effective date of January 1, 2020. When are Student Assistants "Employees" Under The FLSA? Athletic coaches employed by higher education institutions may qualify for the teacher exemption. 213(a)(1), provides an exemption from both minimum wage and overtime pay for certain categories of so-called white collar employees namely, employees working as bona fide executive, administrative, professional, or outside sales employees. If you have questions about any particular issue or problem, you should contact your attorney. DOL Issues Opinion Letters on FLSA Exempt Status and Ministerial - SHRM 2022- 2023 Student Academic Titles and Pay Rates Attach Form 8843 to your U.S. federal income tax return for the tax year. 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. 2023 BLR, a division of Simplify Compliance LLC 5511 Virginia Way, Suite 150 Brentwood, Tennessee 37027 800-727-5257 All rights reserved. Educational establishments include elementary school systems, secondary school systems, institutions of higher education, and other educational institutions. 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). Practical HR Tips, News & Advice. Employees may be separated from employment at any time. The final rule is available at:https://www.federalregister.gov/documents/2019/09/27/2019-20353/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and. OPS/Temporary employees must be hired at least at the federal wage and hourly minimum for the job code. For example, Section 13(a)(1) of the FLSA, a.k.a. OEA Teaching Employees. An official website of the United States government. PDF Exempt Employees - Nevada The professional employee exemption is made up of three different categories: creative professional. On the other hand, the regs indicate the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. Teachers. Several states, including Illinois, have recognized graduate student unions at state universities. Learn how integrated behavioral health rooted in primary care is key to supporting employees mental and physical well-being. p.usa-alert__text {margin-bottom:0!important;} 29 U.S.C. Please view the full disclaimer. Pursuant to NRS 608.018(3)(d), the laws regarding overtime compensation do not apply to "employees who are employed in bona fide executive, administrative, or professional capacities." These employees are considered "exempt". eCFR :: 29 CFR Part 541 -- Defining and Delimiting the Exemptions for Regular Full-time Employees. 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. .usa-footer .container {max-width:1440px!important;} This includes such fields as, for example, music, writing, acting and the graphic arts. Unit 5 - Professional Staff 10 and 12 month non-exempt (July 2021) Factors to consider when determining an employees primary duty include, without limitation, the relative importance of any exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employees relative freedom from direct supervision; and the relationship between the employees salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 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. Overtime for Non-exempt Employees: Non-exempt staff must record all hours worked, including overtime hours, and will receive additional pay for overtime. The regulations discuss several categories of employees whose duties may or may not qualify for the learned professional exemption. 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. Monday, November 5 Hey Fletch Our church has a preschool with part-time teachers. In higher education, employees eligible for the professional exemption are often either teachers (as discussed above) or learned professionals (as described below). Eligible OPS/Temporary employees are covered under the Federal Family and Medical . also exempt certain categories of computer employees. Graduate Teaching Assistants. 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. "Exempt Employee" in California - How Is It Defined? - Shouse Law Group /*-->*/. 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). The substitution of the employee's memory for a manual of standards does not convert the character of the work performed to exempt work requiring the exercise of discretion and independent judgment. 541.303. Non-employee for the purposes of the FLSA - a fellowship does not create an employment relationship. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} Thank you for your inquiry regarding the exempt status of teachers under the new overtime regulations. Executive employees generally decide on their own initiative to perform non-exempt work and remain responsible for their business operations, whereas non-exempt employees generally perform exempt work at the direction of a supervisor or for defined periods. Professional Employee OvertimeExemption Frequently Asked Questions (FAQ) Both federal law (Fair Labor Standards Act or FLSA) and state law (New York Minimum Wage . If an employee's primary duty is teaching, he or she is exempt from the salary requirement. See 29 U.S.C. Ask the Expert: Exempt Status of Teachers under New Overtime About 153,700 openings for teacher assistants are projected each year, on average, over the decade. OP 70.27: Employment of Student Employees | Operating Policies invention, imagination, originality or talent. .paragraph--type--html-table .ts-cell-content {max-width: 100%;} Graduate Teaching Assistant - Exempt. A college or university is a public agency under the FLSA if it is a political subdivision of a State. In addition, whether . 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. The 2022-2023 individual annual premium is $3,062.00. 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. Y26NN. The regs make this distinction where the knowledge involved in a mechanical arts or skilled trades could be of a fairly advanced type, but is not in a field of science or learning. A "teacher" is exempt under the FLSA if his or her primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge, and if he or she is performing that duty as an employee of an educational establishment. However, Section 13(a)(1) of the FLSA provides an exemption from bothminimum wageandovertime payfor employees employed as bona fideexecutive,administrative,professionalandoutside salesemployees. The salary and salary basis requirements do not apply to bona fide teachers. Fact Sheet #17S: Higher Education Institutions and Overtime Pay Under 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). Thus, for example, students who work at food service counters or sell programs or usher at athletic events, or who wait on tables or wash dishes in dormitoriesin anticipate of some compensation (money, meals, etc.) The Fair Labor Standards Act (FLSA) determines whether a position is eligible for overtime pay. 29 CFR 541.700. Human Resources - Washington University in St. Louis .manual-search-block #edit-actions--2 {order:2;} 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. Graduate Assistants | Insurance | Human Resources | USF 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). Importantly, job titles do not determine whether an employee is exempt from the FLSA. FICA (Social Security and Medicare) taxes do not apply to service performed by students employed by a school, college or university where the student is pursuing a course of study. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} As co-chair of the firms Labor and Employment Practice Group, Bill is particularly versed in all aspects of state and federal law relating to minimum wages, overtime, exemptions, and wage payment issues. . Other Personal Services (OPS) pay plan is at-will temporary employment. Download our free white paper to learn more! If a bona fide teacher meets this duty requirement, the salary level and salary basis tests do not apply. In order for an exemption to apply, an employees specific job duties and salary must meet all the requirements of the Departments regulations. 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-block #edit-actions--2 {order:2;} And although the FLSA has evolved since its passage in 1938, one thing remains the same - employers must classify their . Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing. 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. Contacting Coffield PLC or Tim does not create an attorney-client relationship. This requirement generally is not met by a person who is employed as a copyist, as an animator of motion-picture cartoons, or as a retoucher of photographs, since such work is not properly described as creative in character. 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.) [CDATA[/* >