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PT Faculty working PT hourly position Federal

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  • PT Faculty working PT hourly position Federal

    Question on

    Does the position fall under the FLSA/Wage and Hour rules or does the employee?
    Ex: A PT faculty member is exempt from FLSA when they are teaching, but they are working hours in an established position that is usually handled by a PT hourly employee that is hired for that work. The PT faculty member will do this work, but they would like to pay them on a Special Services Agreement with a lump sum payment instead of paying them an hourly rate.

    1. Is this ok?
    2. If so, do they need to follow minimum wage rules or is the person exempt from those rules because their hired position is as a PT faculty?

    _Thank you,

  • #2
    How much time each week do they spend in the non-exempt position?

    P.S. There isn't an exempt position in existence that doesn't include some non-exempt duties.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      So this faculty member is not teaching at all, but rather acting as a file clerk (substitute your relevant obviously NE job here)all semester? Or, they are teaching and also agreed to serve as the file clerk? BIG difference.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

      Comment


      • #4
        Originally posted by ElleMD View Post
        So this faculty member is not teaching at all, but rather acting as a file clerk (substitute your relevant obviously NE job here)all semester? Or, they are teaching and also agreed to serve as the file clerk? BIG difference.
        They are teaching PT, and also agreed to work as a tutor PT. I believe it is temporary.

        Comment


        • #5
          Federal law (FLSA) does not care about part time. so the answer is the same whether or not you include that in your question. The employee is not doing two different jobs, not legally. The employee is doing a single job with a different job description. You always look at the total job and all tasks performed to see whether or not this particular employee is Exempt under the Professional - Teacher exception.

          Not my area of expertise, but I have read nothing that indicates that "tutor" is explicitly non-exempt if the Professional - Teacher rules are otherwise followed. You might want to check with federal or state DOL on that point.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            From the DOL

            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. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers. 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.
            But since we are talking about a Part-Time position while the DOL doesn't care about that status specifically they do care about how much you make each week. Currently it is $455/week to be considered OT-exempt. And come December 1 that amount is increasing to $913/week both of which may be higher than a part time position will pay.
            Last edited by Payroll Guy; 07-07-2016, 02:05 PM.

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            • #7
              Actually, the Professional - Teaching exception does not have the Salaried Basis requirement. It is legal and common to pay teachers as Hourly Exempt.

              We tend to think that Exempt = Salaried, when in fact there are something like 100 Exempt classifications under FLSA, only maybe 4 of which have a Salaried Basis requirement, and some (like the Professional exception) does not always use the Salaried Basis requirement.

              Not all Exempt employees are salaried and not all salaried employees are Exempt.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                I thought that teachers fell under the Learned Professional Exemption and if so...

                Learned Professional Exemption
                To qualify for the learned professional employee exemption, all of the following tests must be met:
                The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
                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;
                The advanced knowledge must be in a field of science or learning; and
                The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

                Fact Sheet #17D

                Comment


                • #9
                  From the same fact sheet you just cited:

                  "The salary and salary basis requirements do not apply to bona fide teachers.

                  "
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    Been down this road a lot. Teachers are exempt and there is no salary basis, even if they also coach, tutor, advise, etc. Many teachers hold other roles aside from classroom teachers. It is common to offer a stipend for these "extra" duties. This does not affect the exemption.

                    Exemption also applies to
                    “those faculty members who
                    are engaged as teachers but also spend a considerable
                    amount of their time in extracurricular activities such as
                    coaching athletic teams or acting as moderators or advisors
                    in such areas as drama, speech, debate or journalism”
                    (29 C.F.R. §541.303(b)

                    This article deals with public K-12 schools, not University faculty but many of the same rules apply http://www.lcwlegal.com/files/114449...ols-9-2011.pdf

                    See also Purdham v. Fairfax County School Board out of the 4th Circuit. The case deals with non-exempt employees who take on "volunteer" roles such as coaches but the decision discusses more than that.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                    Comment


                    • #11
                      Thanks for the info DAW & ElleMD,

                      I don't generally have to deal with teachers very often but good info to file away for future reference.

                      Comment

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