HR Potpourri: Applying FLSA to Non-Exempt employees who Also Coach Mary Kalou, Assistant Superintendent for Business in Maine TWP HS D207 Greg Dietz, Assistant Superintendent General Administration Maine TWP HS D207

Disclaimer We are not attorneys. We are providing information based on our interpretation of the U. S. Department of Labor rulings and conservative advice from our district’s legal counsel. Please consult your own legal counsel for more specific information.

Garcia Law 1985 Garcia v. San Antonio Metropolitan Transit Authority Determined that the Fair Labor Standards Act, which requires employees to provide minimum wage and overtime to their employees applies to state and local governments.

2006 US Department of Labor opinion letter FSLA 2006-40 Regarding non-exempt school system staff assisting with coaching “Under section 3(e)(4)(A) of the FLSA and 29 C.F.R. §§ 553.103, individuals are volunteers, not employees of a public agency when they meet the following criteria: They provide their services for civic, charitable, or humanitarian reasons without promise, expectation, or receipt of compensation for services rendered, although a volunteer can be paid expenses, reasonable benefits, or a nominal fee to perform such services; They offer their services freely and without coercion, direct or implied, from the employer; and They are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer; in other words, individuals can qualify as volunteers if they volunteer for different agencies or perform services different from those they are otherwise employed to perform.”

2009 US Department of labor opinion letter FLSA 2009-10 regarding community members who coach athletic teams for a public school. “ In this case, the school employs no full-time coaches, but relies on community members to meet its coaching needs. Coaches spend most of their time instructing student athletes in the rules and fundamentals of their respective sports. Head coaches and assistant coaches share those teaching duties, although head coaches are responsible for determining the fundamental philosophy, skills and techniques for each team. When not instructing players, coaches devote the balance of their time to activities such as recruiting students to play sports, supervising team members during trips to and from games, disciplining team members when necessary and accounting for all equipment in their care.”

2009 US Department of labor opinion letter Section 13(a)(1) of the FLSA exempts “any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.” “Coaches whose primary duty is teaching qualify for the exemption whether or not they hold a teaching certificate or an academic degree.”

2011 Purdham v Fairfax County School Board Purdham was employed as a Safety and Security Assistant. He also coached golf for 400-450 hours annually and received a stipend of $2,000 (less than minimum wage) Fairfax had been paying overtime to non-exempt employees from 2003 until the 2006 Opinion Letter. Fairfax then reclassified these coaches as volunteers. Purdham sued Fairfax claiming that he should be paid overtime

Courts Decision Under FLSA – “regulations provide that a nominal fee should be Not a substitute for compensation Must not be tied to productivity Should be examined by the total amount of payments made … in the context of the economic realities of the particular situation.” Purdham received less than the federally- mandated minimum wage for his coaching activities. Ruling: the court ruled in favor of the school district.

What does Maine 207 Do? We believe that our coaching stipends are A substitute for compensation More than a nominal amount (up to $11,XXX) Additional pay is provided for productivity - “post season pay” is provided for successful seasons that advance to regional and/or state competitions. At the beginning of every season District 207: Calculates the hours that the non-exempt coaches can work by dividing the stipend by the overtime rate The Athletic Director meets with the coach to determine the plan to stay within those hours The hourly coach tracks the hours for coaching and submits that information to payroll after the season. These sheets are kept as support that the overtime rate was paid.

Questions

You can also do a blended overtime rate A security guards makes $16 per hour working 40 hours a week. He also coaches are the hourly rate for coaching is $10 per hour.

Calculating Overtime rate Week 1 he works 40 hours as a security guard and 15 hours as a coach. Blended rate 40 x $16 = $640 +15 x $10 = $150 total $790 $640/$790 = 81% $150/$790 = 19% ((81% x $16) = $12.96 )+((19% x $10 = $1.90) = $14.86 x 1.5 = $22.29 overtime rate

Calculating Overtime rate Week 2 he works 32 hours as a security guard and 20 hours as a coach Blended rate 32 x $16 = $512 + 20 x $10 = $200 total $712 $512/$712 = 72% $200/$712 = 28% ((72% x $16) = $11.52 )+((28% x $10 = $2.80) = $14.32 x 1.5 = $21.48 overtime rate