HR Compliance Unit 3: FLSA

Commonly Misclassified Assistant to Head of School Development office personnel Admissions Library assistant Teaching assistant

Salaried nonexempt? Salary with built in overtime – Build the overtime pay into the salary – Still must pay overtime for work beyond those hours – Must be explained in writing to the employee – Can be beneficial to both school and employee

Teachers Must teachers be paid on a salary basis? – No, teachers are exempt regardless of whether they are paid on a salary or hourly basis – Ex., Part-time reading specialist can be paid hourly but still be exempt

Assistant Teachers Q:I know Teachers are to be categorized as exempt based on the law. However, how does this apply to those who assist in the classroom and what is the distinction or duties they perform that would qualify them as a teacher or not? We do prefer if our teaching assistants have a teaching degree but do not required it and they are to assist and answer to the lead teacher.

Quiz Question Q: Must teachers be certified to be exempt? a.Yes, only certified teachers qualify for the professional exemption. b.No, teachers employed as teachers do not need to be certified to be exempt. c.Teachers cannot be professionally exempt without certification, but might meet the requirements of the administrative exemption. Q: Must teachers be certified to be exempt? a.Yes, only certified teachers qualify for the professional exemption. b.No, teachers employed as teachers do not need to be certified to be exempt. c.Teachers cannot be professionally exempt without certification, but might meet the requirements of the administrative exemption.

Multiple Jobs Q: Employee teaches 22 hours per week, covers reception desk 8 hours per week, works in the school store 5 hours per week, and teaches yoga after school for 5 hours per week. Is she exempt?

A: Yes. Her “primary” duty includes exempt work (22 hours of teaching + 5 hours teaching yoga). – But, if her exempt duties were less than 50% of the week, employee will likely be considered non- exempt and must be paid overtime.

Multiple Jobs Q: Employee works on the maintenance staff (20 hours/wk ), works in the after-care (10 hours/wk), and is paid a stipend to coach soccer (10 hours). Is he exempt? No. Primary duties worked are nonexempt. – Track all hours worked and pay overtime based on the “regular rate”. – Regular Rate = total compensation in the workweek divided by total number of hours worked in the workweek. – Overtime = 1.5 X Regular Rate

Q: We allow for teaching assistants to work up to 38 hours a week and currently treat them as non- exempt. If that is acceptable to label them non- exempt do we have to pay them overtime if they work in another capacity which would put them past 40 hours. For example, if a teaching assistant works 3 hours in after school care, which is paid at a less rate than their assistant position, for the 1 hour they go over 40 hours are we to still pay them overtime? If so, what rate?

Inclement Weather and FLSA Closing – Exempt employee must receive salary for the week even if school is closed for weather – School may require exempt employee to use accrued leave for days of absence during closure (or advanced leave if employee has no leave balance). – What is no leave is available? Employee must still be paid regular salary. Open / Liberal Leave – Employee who elects not to report to work may be required to use accrued leave – School may deduct from pay in whole day increments

Quiz Question Can I give my nonexempt employees time off or “comp time” instead of paying overtime? a.Yes, if you have a signed agreement with the employee. b.No, all hours worked over 40 in a workweek must be paid at 1.5 times the regular rate of pay. c.Yes, if they use the comp time within the same pay period. Can I give my nonexempt employees time off or “comp time” instead of paying overtime? a.Yes, if you have a signed agreement with the employee. b.No, all hours worked over 40 in a workweek must be paid at 1.5 times the regular rate of pay. c.Yes, if they use the comp time within the same pay period.

Compensable Time Q: If Monday is a paid holiday and employee works 40 hours Tues- Fri, does the school have to pay overtime? A: No, since employee did not actually work on Monday those hours do not count toward “hours worked”

Compensable Time Q: Our school handbook states that employees may only work overtime if they receive prior authorization from the supervisor. Do I still have to pay overtime if the employee did not get prior authorization? A: Yes, but deal with it as a performance problem (failure to follow school policies).

Permissible deductions from exempt employees Q: If an exempt employee works three days then takes two days off for personal reasons other than sickness or accident, does the employee still get paid his non-fluctuating salary?

A. Schools may deduct in whole day increments from exempt salary when the employee is absent for personal reasons. In order to receive the regular salary, the employee would need to use accrued and approved leave. Rule: If an employee is “ready, willing, and able to work,” deductions may not be made for time when work is not available.

FLSA and FMLA Schools can deduct pay in less than full day increments from exempt employees using FMLA (ex. Intermittent leave).