Publication

June 7, 2018Client Alert

U.S. DOL Clarifies Overtime Pay for Higher Education Institutions in Recent Fact Sheet

The U.S. Department of Labor (DOL) recently issued a fact sheet discussing the applicability of the Fair Labor Standards Act (FLSA) “white collar” exemptions to common positions at higher education institutions.  While the fact sheet – titled “Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA)” – does not change the law, it does provide helpful guidance on the FLSA classifications in the higher education context. 

For example, the fact sheet clarifies that teachers are exempt from overtime requirements if they are employed by an educational establishment and their primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge.  As the regulations do not place limitations on where the teaching takes place, the analysis does not change if instruction is in-person, online, or remote.  Coaches may also qualify for this exemption if his or her primary duty is instructing student-athletes in a sport.  However, if the coach’s primary duty is recruiting, he or she would not qualify.

The fact sheet provides other examples of common higher education jobs that would likely qualify for certain exemptions, such as:

  • the learned professional exemption (psychologists, certified public accountants, librarians, and postdoctoral fellows);
  • the administrative exemption (admissions counselors or student financial aid officers);
  • the executive exemption (deans, department heads, and directors).

With regard to student-employees, the fact sheet reiterates that graduate teaching assistants are generally exempt while other student-employees who perform work that is not part of an overall education program – such as working at the dining hall or at school events – are non-exempt employees entitled to minimum wage and overtime.  In contrast, the fact sheet confirms the DOL generally would not find that an employment relationship exists between a research assistant or residential assistant and the higher education institution, assuming the person in the position is enrolled in a bona fide educational program.

Whether an employee of a higher education institution qualifies as exempt from the FLSA is a fact-intensive analysis that must be determined not by a job title but by the employee’s actual day-to-day job duties.  Thus, even the specific examples of exempt jobs included in the fact sheet might not meet the exemption in all cases.  To qualify as exempt, the employee must meet each element of the duties requirements for the relevant exemption and in most cases be paid on a salary basis.

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