Wage / Hour for Independent Schools

Wage / Hour for Independent Schools Debra Wilson, NAIS

Be sure to write . . . • Wilson@nais.org • 202 973 9716

What is up with the Fair Labor Standards Act? • Why is it a big deal for schools? • What are schools doing?

Getting into the FLSA Mindset • Exempt from the FLSA = exempt from overtime (work until you get it done, doesn’t matter how long it takes) • Nonexempt from FLSA = not exempt from overtime (time and a half) • What about state law? Usually follows federal – should be familiar with both. • Standard most beneficial to employees prevails. • Anyone unionized? Cannot bargain away FLSA

Figuring out Wage & Hour • How much are you paying? • $455 per week or $23,660 per year, paid same every week (not based on what or how much is accomplished) • Does not apply to teachers • Which exception? – note title not determinative • Really want to have good, accurate job descriptions, preferably those that use the statutory language. • Want to review what people actually do regularly, because you can get hit here as well.

Executive Exemption • The employee’s primary duty must be managing the School, or managing a customarily recognized department or subdivision of the School; • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and, • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Executive Cont’ • On the hiring and firing: • Part of job description? • Frequency with which recommendations are made requested, and relied upon. • Should generally relate to employees indiv. directs, not occasional suggestions • Okay if higher level individual has more input or individual does not have actual authority to fire

Administrative • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the school. • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Administrative Employees in Educational Setting • Primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment or department or subdivision thereof. • performing work related to the academic operations and functions in a school rather than to administration functions such as general business operations. • Curriculum, quality and methods of instruction, measuring and testing learning potential • New and covers the new positions that have popped up more frequently in past years

Professional Exemption • Learned, artistic and teaching professions • The employee’s 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; • Note on the teacher salary . . .

Administrative Cont’ • Primary Duty – main, major, most part –character of job as a whole. • Directly related – must perform work directly related to assisting with the running or servicing of School. • Discretion and Independent Judgment – Implies that individual has authority to make independent choice free from immediate direction. • Really is the screw-up test: how much opportunity is there to do so, and what difference would it make?

Professional Exemption Cont’ • Teachers Covered • Regular teachers • Kindergarten teachers • Teachers of gifted or disabled • Teachers of skilled or semi-skilled trades and occupations • Teachers of drivers ed • Home ec teachers • Vocal or instrument music teachers

So how do you approach • How much are they making? • 23,600 or $455 per week • Even for part –time • Unless teacher or Admin / Educ. • What do they do? (primarily) • Executive • Administrative / business • Administrative / education related • Teacher / other Professional

Standard Hypothetical • You have a fantastic new assistant director of admissions. He has taken over the recruitment in 1/3 of your key recruiting area and other bigger responsibilities. However, being the newest person in your admissions office, he also is responsible for most of the administrative tasks: sending out form letters, filing, etc. Is this person exempt or nonexempt?

1. What is he making? • 2. Which exemption? • Executive • Administrative • Educational Administrative • Professional

Dedicated Employee • Your head’s assistant has been working at your school for 25 years. She is definitely nonexempt. However, the school is her life – she comes in at 6:00 and leaves at 6:30. She says that she will gladly volunteer her overtime to the school. • What do you say? • Generally – cannot volunteer for something that is similar to job being done for the school. Period. • So what do you do?

Assistant Coaches and Similar Stations • What about my assistant coaches? • Stipends? • Now hourly?

What is an independent contractor? • Are they? • Services integral to employers business? • Permanency of relationship? • Amount of contractor’s investment in equipment? • Nature and degree of control of employer • Contractor’s opportunity for profit and loss and • Contractor’s competition in marketplace for success of enterprise (are they really out there competing?) • Things to be sure about: contract, taxes and insurance, I-9 in contract, pay by 1099, not on payroll, not covered unempl. or workers comp.

Other common questions: • What about comp time? • What about teachers’ assistants? • What about requiring time clocks? • Choice between payment plans?

How do we approach this issue? • Update everyone’s job description and titles. Makes sure you really know what people are doing. • You will find that approximately 5-10% of your staff is not readily determinable. • Work with your legal counsel on making the call on those 5-10%. • Know in advance how you are going to track time in a way that will work for your school • Review regularly.

Wage / Hour for Independent Schools