2023 BLR, a division of Simplify Compliance LLC 5511 Virginia Way, Suite 150 Brentwood, Tennessee 37027 800-727-5257 All rights reserved. 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. This post will focus on the exemption for professional employees. Download the Pay Rate Tables. This exemption does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. Fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning. Another class of employees exempt from overtime laws in California is teachers at private K-12 schools.. Teaching Assistant . Because the case was settled, the court never reached a judgement as to whether the students who received stipends were employees entitled to minimum wage and overtime under the FLSA. OPS/Temporary employees must be hired at least at the federal wage and hourly minimum for the job code. 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. Do we need to either raise it to $47,476 or start tracking hours? Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. This includes such fields as, for example, music, writing, acting and the graphic arts. However, if residence hall directors are re-classified as non-exempt employees, colleges and universities may be . If you qualify to exclude days of presence as a teacher or trainee, you must file a fully-completed Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition, with the IRS. Identifying the exemption status of a position under the Fair Labor Standards Act (FLSA) guidelines, specifically determining if a position is exempt or non-exempt from overtime. Will student help employee be considered exempt if they have a concurrent appointment that is exempt under FLSA guidelines (ex: Teaching Assistants, Research Assistants, etc.) An official website of the United States government. Safety: States Do Not Have Sovereign Immunity Against Damages Claims for Servicemember Discrimination Under USERRA. An agency within the U.S. Department of Labor, 200 Constitution Ave NW 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. 206 (a), 207 (a). For some organizations, the in-person work experience remains a vital part of their business operation, corporate culture, [], Grow your employees careers inside your organization and improve long-term talent retention with the latest report from the Cornerstone People Research Lab and Lighthouse Research & Advisory. The guidance notes that the salary level and salary basis requirements for the white collar exemption do not apply to bona fide teachers. Educational establishments include elementary school systems, secondary school systems, institutions of higher education, and other educational institutions. The professional employee exemption is also available to teachers, if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. In regards to the exempt status of teachers, would this include a Charter School teacher or are Charter schools treated differently? The Fair Labor Standards Act, (FLSA), is a federal law dating back over half a century which establishes certain minimum requirements for employees' hours of work, wages, premium overtime and payroll records. 29 CFR 541.301(e). At the time you are hired or transferred to a new position, you are classified as a regular full-time, regular part-time, short-term, or temporary employee. 29 CFR 541.302(b). See 29 C.F.R. Having a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge includes, by its very nature, exercising discretion and judgment. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Please review the non-student hourly OPS employment policy to ensure compliance. As explained in the regs, this requirement generally is met by actors, musicians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers (the majority of such persons are, of course, not employees but self-employed); and persons holding the more responsible writing positions in advertising agencies. Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which 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 identified in the standard tests for exemption. Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments, https://www.federalregister.gov/documents/2019/09/27/2019-20353/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and, https://www.dol.gov/agencies/whd/regs/compliance/whdcomp, The employee must be paid on a salary basis that is not subject to reduction based on the quality or quantity of work (the , The employee must receive a salary at a rate not less than $684, The employees primary duty must involve the kind of work associated with the exempt status sought, such as executive, administrative, or professional work (the . These exemptions are often called the white-collar exemptions. Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments, https://www.federalregister.gov/documents/2019/09/27/2019-20353/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and, The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684. Private school teachers. Exempt employee - primary duty is teaching (See DOL's Factsheet #17s) Research Assistant. Part 541and discusses the applicability of such exemptions to employees in jobs that are common in higher education institutions. Several provisions apply, however, to many employees at these institutions that exempt them from the Final Rule. .agency-blurb-container .agency_blurb.background--light { padding: 0; } This course will be in-person on the University Park campus. Exempt from Orders (under "Professional" employee classification.) NV Statute 608.018(3)(d) To qualify for the exemption, employees must: be licensed or certified by Nevada to practice law or any profession regulated by Nevada Statutes 623-645, 645G, and 656A; or; be a creative professional as defined by the Fair Labor Standards Act, not including an employee of a . Several states, including Illinois, have recognized graduate student unions at state universities. also exempt certain categories of computer employees. Employees working under flexible work arrangements are required to satisfactorily . 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. If the position will exist for a pre-designated period of time, such as a federal grant period, the employee will receive a short-term assignment. Effective January 1, 2018, part-time private school teachers can be deemed exempt employees if - in addition to satisfying all other requirements of Labor Code Section 515.8 - they meet a pro-rated minimum salary threshold. Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent. The short answer is "no." Teachers are exempt from the federal Fair Labor Standards Act. The employees primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; The advanced knowledge must be in a field of science or learning; and. There are three general types of exempt professional employees: learned professionals, creative professionals, or teaching professionals. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. and have job duties that satisfy certain requirements. . Teachers who possess a teaching certificate generally qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the State to refer to different kinds of certificates. Home Employment and Labor Laws Federal Employment and Labor Laws Fair Labor Standards Act (FLSA) FLSA Exempt Employees FLSA Minimum Wage and Overtime Exemptions. WHD will continue to enforce the 2004 part 541 regulations through December 31, 2019, including the $455 per week standard salary level and $100,000 annual compensation level for Highly Compensated Employees. The Obama-era rule said much the same. (7)(a) All presidents, business managers, administrative officers, superintendents, assistant superintendents, principals, deans, assistant deans, instructors, teachers, and such employees as are engaged in educational or research duties connected with the public school system, colleges, and universities, as determined by the governing body of . Graduate Teaching Assistants. . Practical HR Tips, News & Advice. Of course, an employees qualification for the exemption depends on his or her actual job duties and education. See 29 C.F.R. It is also worth noting that exemption status under the FLSA usually requires that the employee receive pay of at least $684.00 each week to qualify. The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime standards employees who qualify as professional employees. *Note: The Department of Labor revised the regulations located at 29 C.F.R. Many part-time and classified school employeeslike bus drivers, custodians, cafeteria attendants, and instructional assistantsalready get less paid leave offered to them than their full-time . Unfortunately, there is little other guidance from the U.S. Department of Labor or the courts regarding when, exactly, a student worker must be considered an employee and paid as such under the FLSA. The exemption could likewise apply, for example, to an agricultural extension agent who is employed by an educational establishment to travel and provide instruction to farmers, if the agents primary duty is teaching, instructing, or lecturing to impart knowledge. The Fair Labor Standards Act (FLSA) determines whether a position is eligible for overtime pay. "Educational establishments" include institutions of higher education. The regs further provide that an employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. One of the main differences between exempt employees and non-exempt employees is that exempt employees receive a salary for the work they perform, while non-exempt employees earn an hourly wage. To qualify for the exemption as a creative professional, the employees work must be performed in a recognized field of artistic or creative endeavor. This includes such fields as music, writing, acting and the graphic arts. 29 USC 213(a)(1). Therefore, . The requirement of invention, imagination, originality or talent distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. 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. The key difference between exempt and non-exempt employees is that non-exempt workers are entitled to certain protections under the Fair Labor Standards Act, a federal law that sets minimum wage and overtime requirements. .usa-footer .container {max-width:1440px!important;} 207(o)(3)(A). 29 USC 213 (a) (1). On the other hand, licensed practical nurses, accounting clerks, bookkeepers, and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. However, the law contains several exceptions or exemptions from these requirements, most of which turn on a combination of the employees pay and the nature of their job duties. The wage and hour team at Franczek PC created this blog to provide timely, practical insights on wage and hour law to employers. An employee who is regularly scheduled to work less than 30 hours per week is considered a regular part-time employee. Graduate Teaching Assistants. Federal government websites often end in .gov or .mil. Teaching Professional Employees - FLSA Exemptions. The Department of Labor is also an excellent resource for information about the professional employee exemption. The employees primary duty must be to perform administrative functions directly related to academic instruction or training in an educational establishment. Student assistants who are unionized or who are otherwise recognized as employees by a college or university for other purposes should be treated as such for purposes of minimum wage and overtime compliance. This means that they are not exempt from (and therefore should receive) overtime pay. Exempt employees are those whose duties and responsibilities exempt them from statutory overtime pay provisions. Generally, the Department views graduate and undergraduate students who are engaged in research under a faculty members supervision in the course of obtaining a degree to be in an educational relationship and not an employment relationship with the school or with a grantor. To qualify for the exemption as a creative professional, the employees work must be performed in a recognized field of artistic or creative endeavor. This includes such fields as music, writing, acting and the graphic arts. Postdoctoral fellows, who conduct research at a higher education institution after completing their doctoral studies, likewise generally meet the duties requirements of the learned professional exemption, and they may additionally qualify for the teacher exemption if teaching is their primary duty. Coffield PLC and attorney Tim Coffield welcome your calls, emails, and contact forms. Importantly, job titles do not determine whether an employee is exempt from the FLSA. #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;} 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. 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. Classified among other highly trained professionals, they are exempt from requirements for overtime pay. (505) 880-3700, Student Service Center Advanced knowledge cannot be attained at the high school level. They don't get paid for working after hours, home visits or for the Christmas play rehearsals. 29 CFR 541.204(b); 29 CFR 541.303(a). Coffield PLC and attorney Tim Coffield welcome your calls, emails, and contact forms. There are three general types of exempt professional employees: learned professionals, creative professionals, or teaching professionals. Substitute Teachers/Substitute Educational Assistants hired to substitute for licensed teachers or educational assistants on an as-needed basis are not entitled to receive benefits or leave unless specifically stated. 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). 541.204. 19. Exempt Employees . So we have a teaching fellow whose salary is $40k. To qualify for the learned professional employee exemption, all of the following tests must be met: The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. The district has several exempt employees who do not earn $684 per week. Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes, Virginia Values Act: Powerful Protections for Virginia Employees, Virginia Civil Air Patrol Leave Law: Protections for Employees Who Are Civil Air Patrol Volunteers, EEOC v. Abercrombie & Fitch Stores, Inc.: Title VII Gives Favored Treatment to Employees Religious Practices, Torres v. Texas Dept of Pub. Albuquerque NM 87125-0704, APS Administration 29 CFR 541.303(c), State Laws Federal Laws Topics Articles Resources, FLSA Minimum Wage and Overtime Exemptions, Impact of Responsibility for Extracurricular Activities. Under federal tax law, a University employee who receives a graduate school tuition waiver in excess of $5,250 in a calendar year must treat the excess amount as additional . If you have questions about any particular issue or problem, you should contact your attorney. 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. Professional exemption. Graduate Assistant (exempt) - Job Code 9550. Employers of students who are performing work on a federal contract in an FLSA non-exempt student job title (i.e., a title other than Graduate Research Assistant, Assistant Instructor, or Teaching Assistant) may contact the Office of Sponsored Projects at osp@austin.utexas.edu for more information. The University considers a Teaching Assistant (TA) or Research Assistant (RA) as a graduate student who is involved in the following teaching or research activities: . requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. The employees primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. However, employees engaged to work in a public safety activity, an emergency response activity, or a seasonal activity may accrue as much as 480 hours of comp time. If the public university or college qualifies as a public agency, non-exempt employees generally may not accrue more than 240 hours of comp . .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} 2. Advanced knowledge cannot be attained at the high school level. To qualify for the executive exemption, an employee must satisfy the following tests: See29 C.F.R. Wages Paid for Anticipated Overtime are Excludable from Employees Regular Rate. If you have questions about any particular issue or problem, you should contact your attorney. Teaching Assistant. In California, for example, non-exempt employees must be paid overtime if they work more than eight hours in a single day. /*-->*/. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} Job titles alone are not sufficient for determining whether an employee satisfies the duties test. 29 CFR 541.601. As a general rule, the less educational value the job has for the student, the more likely it is that the student will be considered an employee for wage and hour purposes. Ready, set, grow:The building blocks for high-impact talent mobility will help you better understand your employees expectations around internal development and what your leaders must do to succeed. This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. The duties of employees vary widely, and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. 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. Temporary employees include, but are not limited to, hourly, summer employees and interns. [CDATA[/* >