USF has tentatively agreed to pay up to $2,762.00 of the annual premium for eligible GAs with at least a .25 FTE. 29 CFR 541.701. Part 541, as applied to professional employees. If the public university or college qualifies as a public agency, non-exempt employees generally may not accrue more than 240 . Non-employee for the purposes of the FLSA - a fellowship does not create an employment relationship. Determination of exempt creative professional status, therefore, must be made on a case-by-case basis. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Graduate Assistant (exempt) - Job Code 9550. Several states, including Illinois, have recognized graduate student unions at state universities. The regs further provide that an employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. which permits deductions from pay of exempt employees if they are "made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules" and are "imposed pursuant to a written policy applicable to all employees." 29 C.F.R. Do we need to either raise it to $47,476 or start tracking hours? Use these briefs to help determine and justify how your employees meet the requirements. A: Schools and institutions of higher education are generally covered by the FLSAs minimum wage and overtime provisions. 29 CFR 541.302(d). .cd-main-content p, blockquote {margin-bottom:1em;} 1. 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. 207(o)(3)(A). That begs the question, when must a student be considered an employee for purposes of minimum wage and overtime? In higher education, employees eligible for the professional exemption are often either teachers (as discussed above) or learned professionals (as described below). Employees directly employed by the State or any political subdivision thereof, including any city, county or special district. .cd-main-content p, blockquote {margin-bottom:1em;} However, if such assistant managers are closely supervised and earn little more than the nonexempt employees, the assistant managers generally would not satisfy the primary duty requirement. In the case in question . Notably, there are specific regulatory provisions for certain administrative employeesknown as academic administrative employeeswhose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. Wages Paid for Anticipated Overtime are Excludable from Employees Regular Rate. However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator. The DOLs implementing regulations with respect to the professional employee exemption are generally located at. 29 CFR 541.301(c). See29 C.F.R. See other fact sheets in this series for more information on the exemptions for executive, administrative, computer and outside sales employees, and for more information on the salary basis requirement. In addition, whether . The employees primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. The employees 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. NV Statute 608.018(3)(d) To qualify for the exemption, employees must: be licensed or certified by Nevada to practice law or any profession regulated by Nevada Statutes 623-645, 645G, and 656A; or; be a creative professional as defined by the Fair Labor Standards Act, not including an employee of a . and have job duties that satisfy certain requirements. An agency within the U.S. Department of Labor, 200 Constitution Ave NW OSTA Unit 1 (Troopers) OSTA Unit 15 (Sergeants) The district has several exempt employees who do not earn $684 per week. Teachers who possess a teaching certificate generally qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the State to refer to different kinds of certificates. Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which, as of January 1, 2020, must include at least $684 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee. The Obama-era rule said much the same. The requirement of invention, imagination, originality or talent distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); As organizations and workforces around the world continue charting their course ahead for 2023 and beyond, many are finding that while remote work was sustainable the past two years, it may not be a long-term recipe for success. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. (505) 880-3700, Student Service Center Emergency-management coordinators employed by a county government might be exempt administrative employees, depending on their primary duties, the DOL said in FLSA 2020-9. 29 CFR 541.303(b). The employees primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Unit 5 - Professional Staff 10 and 12 month non-exempt (July 2021) This article was also published to TimCoffieldAttorney.net. To qualify for the creative professional employee exemption, all of the following tests must be met: This requirement distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. The regs further provide that having an elementary or secondary teachers certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals. Y31NC- Y33NN. Pay. 29 CFR 541.303(d), Educational establishments include elementary or secondary school systems, an institutions of higher education, or other educational institutions. #block-googletagmanagerheader .field { padding-bottom:0 !important; } Student assistants who are unionized or who are otherwise recognized as employees by a college or university for other purposes should be treated as such for purposes of . Effective January 1, 2018, part-time private school teachers can be deemed exempt employees if - in addition to satisfying all other requirements of Labor Code Section 515.8 - they meet a pro-rated minimum salary threshold. Here are some basic guidelines about exempt . .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} All rights reserved. The professional employee exemption is made up of three different categories: creative professional. Employers of students who are performing work on a federal contract in an FLSA non-exempt student job title (i.e., a title other than Graduate Research Assistant, Assistant Instructor, or Teaching Assistant) may contact the Office of Sponsored Projects at osp@austin.utexas.edu for more information. The professional employee exemption is also available to teachers, 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. .h1 {font-family:'Merriweather';font-weight:700;} 10 month Teacher Assistants and ParaEducators . In a dual-employment circumstance, an employee's combined hours would count toward the forty . Eligible OPS/Temporary employees are covered under the Federal Family and Medical . invention, imagination, originality or talent. Factors relevant in determining whether post-secondary career programs are educational institutions include whether the school is licensed by a state agency or accredited by a nationally recognized accrediting organization. (Note: Staff represented by a . 29 CFR 541.301(b). Educational establishments include elementary school systems, secondary school systems, institutions of . .table thead th {background-color:#f1f1f1;color:#222;} WHD will continue to enforce the 2004 part 541 regulations through December 31, 2019, including the $455 per week standard salary level and $100,000 . . Parts of this site may be considered attorney advertising. The specific requirements for exemption as a bona fide professional employee are summarized below. To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (. ) One of the main differences between exempt employees and non-exempt employees is that exempt employees receive a salary for the work they perform, while non-exempt employees earn an hourly wage. exemption if the employee continues to meet the primary duty requirements. Franczek P.C. Primary duty means the principal, main, major or most important duty that the employee performs. Graduate Teaching Assistants. The employees primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (as opposed to routine mental, manual, mechanical or physical work). Unfortunately the answer to that is no. A faculty member who teaches online or remotely also may qualify for this exemption. Many part-time and classified school employeeslike bus drivers, custodians, cafeteria attendants, and instructional assistantsalready get less paid leave offered to them than their full-time . Thus, for example, the learned professional exemption may be available to the occasional lawyer who did not go to law school, or the occasional chemist who does not have a degree in chemistry. The salary and salary basis requirements do not apply to bona fide teachers. However, private schools and public schools are not uniform in requiring a certificate for employment as an elementary or secondary school teacher, and a teachers certificate is not generally necessary for employment in institutions of higher education or other educational establishments. 29 CFR 541.302(b). Teachers that are exempt include, but are not limited to: Faculty members who are teachers but also spend a considerable amount of their time in extracurricular activities, such as coaching athletic teams or acting as an advisor in drama, speech, debate, or journalism qualify for the professional exemption. Private school teachers. "Educational establishments" include institutions of higher education. Determination of an employees primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employees job as a whole. FICA (Social Security and Medicare) taxes do not apply to service performed by students employed by a school, college or university where the student is pursuing a course of study. At the federal level, the National Labor Relations Board has taken shifting positions, holding in 2000 that graduate students were employees, and reversing itself in 2004. If the primary duty of a coach is imparting . If an employee earns more than $35,568 per year, his or her overtime eligibility is determined by looking at job responsibilities. The job assignment, work schedule and duration of the position will be determined on an individual basis. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} The salary and salary basis requirements do not apply to bona fide teachers. The FLSA provides for several kinds of exempt professional employeessuch as learned professionals, creative professionals, teachers, and employees practicing law or medicine. (b) On the other hand, an employment relationship will generally exist with regard to students whose duties are not part of an overall educational program and who receive some compensation. In October 2019, the U.S. Department of Labor (DOL) announced changes to the Fair Labor Standards Act (FLSA) requirements for an employee to be considered exempt with regard to the application of minimum wage and overtime requirements, an issue relevant to the use by high school athletics and activities programs of non-exempt school employees as coaches, support . The phrase fields of science or learning includes the professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades. DOL has been working closely with NIH and NSF regarding their mutual interest in this area. 29 CFR 541.301(e). The phrase fields of science or learning includes the professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades. Instead, they are not eligible for overtime if they are paid at least as much as the entrance salary for teachers at their institution. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing. . 20. Colleges and universities should pay close attention to developments not only in wage and hour law, but also traditional labor law, as the status of student assistants as employees remains in dispute. This means that they are not exempt from (and therefore should receive) overtime pay. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine. The site is secure. .manual-search ul.usa-list li {max-width:100%;} Student assistants who are unionized or who are otherwise recognized as employees by a college or university for other purposes should be treated as such for purposes of minimum wage and overtime compliance. (505) 855-9040 See 29 U.S.C. Technology is the intersection of an enhanced employee experience and proactive HR.