Paraprofessional wages/rights under FLSA

The Fair Labor Standards Act (FLSA) came about in 1938 as a result of the Great Depression. It was part of the New Deal championed by President Franklin D. Roosevelt. It is a federal law that sets minimum wages and currently requires overtime for hours worked in excess of 40 hours in a week.

Most paraprofessionals in Texas schools are covered by the overtime and minimum wage requirements of the FLSA; most teachers are not.

Overtime and minimum wage eligibility

If you are paid hourly and not categorized as an executive, administrator or professional (teacher, counselor, etc.), you are probably entitled to receive overtime pay.

Covered employees include secretaries, education aides, hall and lunchroom monitors, custodial workers, bus drivers, cafeteria workers, security personnel and warehouse workers. A teacher who spends more than 50% of working hours within one week in a support role (e.g., driving a bus) may be able to claim overtime. Both salaried and hourly workers may be entitled to overtime pay. Those in the executive, administrative or professional category who are paid hourly may receive overtime pay. Employees such as education aides or others in the covered employee categories are likely entitled to overtime pay even if they are salaried.

Current minimum wage

The federal minimum wage has been $7.25 an hour since 2009. Texas has the same minimum wage of $7.25 an hour.

Overtime

Generally, the FLSA requires that employees who work more than 40 hours in a one-week period be paid at a rate of 1.5 times their normal hourly rate for hours worked in excess of 40. Some factors to consider:

• Workweek: The employer can begin the workweek on any day of the week and at any hour of the day, but it must be a period of 168 hours during seven consecutive 24-hour periods. Most workweeks are the same as calendar weeks, running from Sunday through Saturday, but a workweek could start on Tuesday and run through Monday, for example. To determine if someone has worked in excess of 40 hours, each workweek must be reviewed independently.
• Hours worked: Generally, employees who are “engaged to wait,” meaning they are told to be available to do something, can count the “waiting” time as work hours. If an employee is completely relieved of all duties until a certain definite time, and can use the time as the employee sees fit, the “waiting” time does not count as work hours. Once an employee starts the workday, all time spent traveling must be counted as hours worked; however, traveling between home and the workplace does not count.

Volunteer work

A covered employee can volunteer to work without pay if (1) the employee performs services different from those the employee usually performs; (2) the employee offers to perform the services freely and without coercion; and (3) the services support a civic, charitable or humanitarian purpose. The district must compensate the employee if the work does not satisfy all these criteria. A finance clerk cannot “volunteer” to take money and keep the books for a fundraising event, and an administrator cannot imply that “team players” volunteer; i.e., “no volunteer work, no job,” to encourage people to volunteer.

Compensatory time

A school district can require an employee to take compensatory time in lieu of overtime pay if the employee agrees to that arrangement in writing before performance of the work. If the employee has not signed an agreement to accept compensatory time, the employee can object to a request to do so and insist on receiving overtime pay.

An employer must honor an employee’s request to use compensatory time within a reasonable time after the request unless the use of compensatory time would “unduly disrupt” the employer’s business. The proper calculation of compensatory time is 1.5 times the hours worked in excess of 40.

Upon termination of employment, any unused compensatory time accrued by an employee must be paid to the employee.

Rest and meal breaks

The FLSA does not require an employer to provide rest breaks or meal breaks to employees. If a rest break is 20 minutes or longer and the employee is completely relieved of duties, it is not counted as time worked even if the employee is required to remain on school premises. The employee must then make up the time during that week in order to work a full 40 hours.

The only time meal periods do not count as hours worked is if they are at least 30 minutes long, the employee is completely relieved of all duties, and the employee is not required to remain at the duty post.

Nursing mother breaks

The FLSA requires all employers subject to the FLSA to provide reasonable break times to mothers who wish to express breast milk for one year after a child’s birth. Employers must provide a location other than a multiple-user bathroom for the mothers to express milk. This location must be free from intrusion from co-workers and the public. An employee does not have to be paid for this time.

This requirement does not apply to an employer with fewer than 50 employees if the employer would experience “undue hardship” as a result of providing such breaks. This provision applies only to employees covered by overtime and minimum wage requirements. It does not apply to exempt employees, including teachers. However, under a state law passed in 2015, all Texas public employees (including teachers) now must be provided reasonable break time and a space other than a multiple-user bathroom to express breast milk.

Reporting FLSA violations

TCTA members with questions about the Fair Labor Standards Act may call TCTA staff attorneys at 888-879-8282.

The U.S. Department of Labor Wage and Hour Division is charged with enforcing the FLSA and may be reached at 866-4USWAGE (866-487-9243). The department maintains a website at www.dol.gov/whd.