School officials often get tripped up with the overtime requirements of the Fair Labor Standards Act (“FLSA”). The FLSA requires employers, including public schools, to pay overtime to “non-exempt” employees at a rate of time-and-a-half for work in excess of 40 hours per week (e.g., Sunday to Saturday).
Non-exempt employees are typically paid an hourly wage for each hour they work. Simply paying an employee a salary rather than an hourly wage does not make the employee “exempt” under the FLSA. An employee may be treated as exempt if they meet three requirements: (1) the employee is paid on a salary basis, meaning they are paid a set salary amount that, except for a few exceptions, does not vary from week-to-week; (2) the employee is compensated at least $455 per work week ($23,660 annually); and (3) the employee’s primary duty meets one of the three exemptions described below. Teachers, professionals, and academic administrators are generally considered exempt under the FLSA.
Under the administrative exemption an employee must perform non-manual duties related to management for general business operations and exercise independent discretion and judgment on matters of significance. This exemption could include a business manager or other central office professionals and building administrators.
For the executive exemption, an employee must manage operations, direct the work of two or more other employees, and have supervisory authority over those employees (e.g., the authority to hire, fire, evaluate, and promote). Examples could include transportation, food service, or operations directors.
As a professional, an employee must perform work requiring advanced knowledge often demonstrated by required higher education and the employee must consistently exercise his or her own discretion and judgment. Teachers, school psychologists, and speech pathologists often qualify for this exemption.
If an employee does not qualify for any of the FLSA exemptions, the employee must be treated as “non-exempt” and school officials must record all time worked. This includes mandated attendance at board meetings, trainings, or any other activity required by the school. Work time also includes time spent performing preliminary and postliminary activities such as inspecting buses and cleaning a workstation.
When a non-exempt employee takes on additional paid assignments, like coaching, schools will likely have to track the employee’s hours worked (in total) and provide the employee with overtime pay if they work more than 40 hours in a week. Time a non-exempt employee performs services for a school, unless it is volunteer service, must be counted as work time and the employee must be compensated accordingly.
Collective bargaining agreement language that only pays employees on a “per run” basis or stipends for specific assignments could violate the FLSA, if compensation does not meet minimum wage for the hours worked, or fails to provide overtime pay to an eligible employee. Collective bargaining agreements cannot provide wage rates that violate the FLSA. Labor agreements may, however, expand overtime exposure by granting overtime pay for working more than eight hours a day, on a holiday, or weekend.
Often overlooked is the requirement that non-exempt employees must record all of their hours worked on a daily basis. Simply having non-exempt employees fill out pro forma time sheets and paying the employees a salary rather than for actual hours worked violates the FLSA’s recordkeeping requirements. If an employer fails to keep time records for non-exempt employees and a dispute arises, there is a presumption of evidence against the employer.
Correctly classifying employees as “exempt” or “non-exempt” is the first step toward complying with the FLSA. If an employee is non-exempt, school officials must ensure that compensation and recordkeeping practices adhere to the FLSA. Addressing these issues through board policy, individual contracts, employment procedures, and collective bargaining agreements will help ensure FLSA compliance.