The U.S. Department of Labor made major changes to the Fair Labor Standards Act (FLSA) that will become effective Dec. 1, 2016. While these changes are likely to cause a great deal of turmoil in private industry, they are unlikely to affect most TCTA members. The main change to the rules is the minimum salary that must be paid in order for an employee to be exempt from the FLSA overtime pay requirements. An exempt employee is not entitled to be paid overtime at time and a half wages for hours worked over 40 hours per week.

Generally, there is a two-part test to determine if an employee is exempt.

1. The employee must be paid a minimum salary of $913 per week starting Dec. 1, though most media is reporting this as an annual salary of $47,476. This annual salary would not be accurate for most school employees who work fewer than 52 weeks per year. The weekly wage is calculated not by the amount paid, but by the amount earned per week. To calculate your weekly wage, divide the annual salary by the number of weeks of employment, including any partial weeks worked.

2. The employee must meet all criteria of the duties tests for employees that can be exempt (e.g., executive, administrative, professional, computer professional) as provided by the FLSA.

Unfortunately, the FLSA regulations specifically exclude teachers (and have for many years; this is not a recent change) from having to meet the salary test in order to be considered exempt. Additionally, employees engaging in academic administrative functions providing services directly related to instruction (such as counselors who perform work like administering school testing programs) meet the salary test as long as they are paid at least as much as the weekly salary of a beginning teacher.

Employees who provide strictly non-educational or health functions would be subject to the new weekly minimum salary in order to be considered exempt. This would include registered nurses, school psychologists, physical therapists, speech-language pathologists, diagnosticians, accountants, supervisors, and other non-teaching personnel. While most of these positions would meet the duties test for FLSA exemption, they would also have to be paid at least $913 per week to meet the salary test.

Most paraprofessionals probably do not meet the duties test (or meet the salary threshold, for that matter), so they are subject to the overtime provisions of the FLSA. Being paid a salary instead of an hourly wage does not and has not affected paraprofessionals’ protections under the FLSA. Except for the changes in the minimum salary, the provisions of the FLSA remain largely unchanged. Information on the FLSA is available on our website. Actual hours worked matter, so your employer cannot legally assume that everyone just works eight hours a day or treat additional time worked as “volunteering.”

If any TCTA member has questions about whether the FLSA applies to you or has questions about your rights under the FLSA, please call our legal department at 888-879-8282.