DOL Issues Guidance on Applicability of FLSA Exemptions to Higher Education Jobs

By Alexis Gabrielson, Jennifer Ives and Sara Welch

On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued a new fact sheet that discusses the applicability of the "white collar" exemptions of the Fair Labor Standards Act (FLSA) to jobs that are common in higher education institutions.

This fact sheet provides information on minimum wage and overtime exemptions common to higher education jobs, including teachers, coaches, professional employees, administrative employees, graduate teaching assistants, research assistants, and student residential assistants.

In general, to qualify for an exemption under the FLSA, an employee must satisfy three tests:

  1. The employee must be paid on a salary basis that is not subject to reduction based on the quality or quantity of work (the "salary basis test"), rather than, for example, on an hourly basis.
  2. The employee must receive a salary at a rate not less than $455 per week (the "salary level test").
  3. The employee’s primary duty must involve the kind of work associated with the exempt status sought, such as executive, administrative, or professional work (the "duties test").

A "teacher" is exempt under the FLSA if his or her primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge, and if he or she is performing that duty as an employee of an educational establishment. See 29 C.F.R. § 541.303. "Educational establishments" include institutions of higher education. See 29 C.F.R. § 541.204(b). If a bona fide teacher meets this "duty requirement," then the salary level and salary basis tests described above do not apply. See 29 C.F.R. §§ 541.303(d), 541.600(e). According to the DOL’s fact sheet, professors, instructors, and adjunct professors typically qualify for this exemption, and faculty members who teach online or remotely may qualify if certain conditions are met. In addition, coaches may qualify for the teacher exemption, but not if their primary duty is recruiting as opposed to instructing student-athletes in how to perform their sport.

Non-teacher professional employees also may qualify as exempt under the "learned professional" exemption. To qualify as a learned professional, employees must satisfy three requirements:

  1. The employee’s primary duty must be the performance of work requiring advanced knowledge.
  2. The advanced knowledge must be in a field of science or learning.
  3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

See 29 C.F.R. § 541.301. In higher education, examples of exempt non-teacher learned professionals generally include certified public accountants, psychologists, certified athletic trainers, and librarians. Postdoctoral fellows also generally meet the duties requirements of the learned professional exemption.

More information about exemptions for administrative, executive and student employees, as well as information about compensatory time off in lieu of overtime pay at public universities, may be found on the DOL’s fact sheet. Additional fact sheets addressing other wage and hour topics can be found on the DOL's website.

For additional guidance on FLSA exemptions, please contact Alexis Gabrielson, Jennifer Ives, Sara Welch or the Stinson Leonard Street contact with whom you regularly work.


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