Ask the Expert: Exempt Status of Teachers under New Overtime Regulations

We’re trying to verify that teachers are exempt when it comes to new overtime regulations? So we have a teaching fellow whose salary is $40k. Do we need to either raise it to $47,476 or start tracking hours?

Thank you for your inquiry regarding the exempt status of teachers under the new overtime regulations.

The U.S. Department of Labor addressed this in a Q&A on the new overtime regulations (referred to as the “Final Rule” in the Q&A):

Q: Is there an exemption for schools and institutions of higher education from either the FLSA or the Department’s overtime regulations governing white collar workers?

A: Schools and institutions of higher education are generally covered by the FLSA’s minimum wage and overtime provisions. Several provisions apply, however, to many employees at these institutions that exempt them from the Final Rule. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing.

“Teachers” include, for example, regular academic teachers, kindergarten or nursery school teachers, teachers of gifted or disabled children, professors, adjunct instructors, teachers of skilled and semi-skilled trades and occupations, home economics teachers, vocal or instrument music teachers, and under certain circumstances, athletic coaches and assistant coaches.

Although a preschool may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs of the facility’s children would not meet the requirements for the exemption as a bona fide teacher.

Generally, the Department views graduate and undergraduate students who are engaged in research under a faculty member’s supervision in the course of obtaining a degree to be in an educational relationship and not an employment relationship with the school or with a grantor. As such, the Department will not assert such workers are entitled to overtime.

In addition, the administrative personnel that help run higher education institutions and interact with students outside the classroom, such as department heads, academic counselors and advisors, intervention specialists and others with similar responsibilities are subject to a special salary threshold that does not apply to white-collar employees outside of higher education. Instead, they are not eligible for overtime if they are paid at least as much as the entrance salary for teachers at their institution.

Finally, public universities or colleges that qualify as a “public agency” under the FLSA may compensate overtime-eligible employees through the use of compensatory time off in lieu of cash overtime premiums.

Postdoctoral researchers in the sciences are not covered by the teaching exemption. These employees are generally considered professional employees and are subject to the salary threshold for exemption from overtime. DOL has been working closely with NIH and NSF regarding their mutual interest in this area.

Based on this information, it appears the teaching fellow in your inquiry would not be subject to the new salary requirement if he or she is a bona fide teacher as outlined above.

At the same time the new overtime regulation was published, the DOL also published Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act.  The guidance notes that the salary level and salary basis requirements for the white collar exemption do not apply to bona fide teachers.