"From CAPLAW Legal Update January 2005"
From CAPLAW Legal Update January 2005 FLSA: Are Head Start Teachers Exempt? By Anita Lichtblau, Esq., CAPLAW With the Department of Labor's (DOL) recent issuance of revised regulations under the Fair Labor Standards Act (FLSA)1 governing white-collar exemptions to required overtime pay,2 many Community Action Agencies (CAAs) have been asking whether Head Start teachers can be classified as exempt employees. The answer is a definite "maybe." As discussed below, the classification as exempt or non-exempt will depend mainly on two factors, including the state in which the CAA is located and the responsibilities of the teacher. The FLSA and Regulations Under the FLSA, an employer is not required to pay overtime to an "employee employed in a bona fide professional capacity"; such an employee is considered "exempt." Teachers, or at least some teachers, are one type of exempt "professional employee." Both the old and the new FLSA regulations require that in order to be exempt, a teacher's primary duty must consist of the performance of "teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge" and s/he must be "employed and engaged in this activity as a teacher in [a] school system or educational establishment or institution...."3 Neither version requires a minimum salary to be paid in order to obtain the exempt status. The new regulation, however, deletes the old requirement that the teacher's work "require] the consistent exercise of discretion and judgment in its performance,"4 as well as requirements that the work be predominantly intellectual in nature5 and that the teacher devote no more than 20 percent of his or her work time to "activities which are not an essential part of" his or her work.6 The Analysis By deleting these requirements, as well as expressly including nursery school teachers as an example of an exempt teacher,7 the DOL has apparently loosened the restrictions on classifying preschool teachers as exempt. Using the nursery school teacher as an example suggests that the DOL believes that a preschool or nursery school would qualify as an "educational establishment or institution," a requirement that remains in the revised rules. Given the increased focus on education in the Head Start program, as discussed below, the DOL would presumably also classify Head Start programs similarly. 1 29 U.S.C. §§ 201 et seq. 2 29 C.F.R. Part 541, effective August 23, 2004. See CAPLAW Legal Update, May 2004, p. 1 for a full story on the revised regulations. 3 29 C.F.R. 541.3 (old) and 29 C.F.R. 541.303 (new). 4 29 C.F.R. 541.3(b) (old). 5 29 C.F.R. 541.3(c) (old). 6 29 C.F.R. 541.3(e) (old). 7 29 C.F.R. 541.303(b) (new). 1 An analysis still needs to be conducted by the employer, however, to determine whether the primary duty of a particular Head Start teacher, or category of teachers within a Head Start program, consists of teaching or instructing in the activity of imparting knowledge, as opposed to, for example, taking care of the physical needs of the children, ensuring their physical safety, or as some might call it, "babysitting." The increased emphasis on literacy, school readiness, and educational qualifications of teachers found in the 1998 Act reauthorizing the Head Start program8 certainly supports the exempt classification of at least those Head Start classroom staff who are primarily engaged in "imparting knowledge." Development and implementation of a formal curriculum by the teacher would also support the exemption. The State Law Complication Before jumping to the conclusion that Head Start teachers may be classified as exempt, after careful analysis of the factors discussed above of course, a CAA needs to check on its state wage and hour law. Some states, New York for example, have exemption rules that differ from the revised regulations. If the state rules are more favorable to the employee - i.e. would result in paying higher wages - then the employer must follow the state rules. Guidance from DOL and ACF There is not yet any official guidance from government agencies that enforce and/or monitor these rules on how the new regulations should be applied to Head Start, or other preschool, teachers. DOL opinion letters issued prior to the new regulations typically concluded that preschool teachers would not ordinarily meet the requirements for exemption as teachers because their primary duty was to care for the needs of the children. DOL also took the position that in order to be exempt, preschool teachers needed to meet the requirement that their work required a college education, a "requirement" that in fact did not exist for teachers, either in the old or new regulations, and that preschool teachers failed to meet such a "requirement."9 No DOL opinion letters on this subject have been issued since the new regulations became effective. Since the new rules, however, several DOL regional officials (in Arkansas and Texas) have stated in telephone conversations with Head Start program staff that Head Start teachers are now exempt. The Administration for Children and Families (ACF) at the U.S. Department of Health and Services, which administers the Head Start program at the national level, is studying the issue. Conclusion Given the lack of explicit written guidance from DOL or ACF, it is impossible to give an ironclad answer on whether a Head Start teacher is exempt under the new FLSA rules. However, it is likely that those Head Start staff members whose primary duty is teaching or instructing in the activity of "imparting knowledge" would qualify for exemption.10 It is advisable, however, for CAAs to check with their local attorneys to determine both how FLSA exemption rules apply to their particular employees and whether state law allows such an exemption. 8 42 U.S.C. §§ 9835, 9843(a). 9 See, e.g., DOL/Wage and Hour Opinion Letter dated September 20, 2000. (WL33126562). 10 Of course, some non-teaching Head Start staff may qualify for exemption under other categories of white-collar exemptions, such as executive or administrative. 2