On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a new fact sheet concerning “the applicability of [the white collar] exemptions [of the Fair Labor Standards Act] to jobs that are common in higher education institutions.” In contrast to other recent DOL direction, Fact Sheet #17S largely echoes previous guidance from the Obama-era DOL. Specifically, it summarizes points from the DOL’s May 2016 Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act, a publication anticipating the never-implemented DOL’s revised overtime regulations, which would have raised the salary threshold for previously-exempt employees at institutions of higher education.
The fact sheet discusses white collar exemptions with specific applicability to higher education institutions, including the teacher exemption, professional employee exemption, administrative employee exemption, academic administrative employee exemption, and the executive employee exemption. The fact sheet devotes particular attention to positions unique to higher education that may fall into these various exemptions—including coaches, postdoctoral fellows, academic counselors, and department heads. Importantly, several nonacademic administrative positions that feature prominently in many universities and colleges—like recruiters and admissions counselors—are not addressed in the fact sheet and are not covered by the academic administrative employee exemption.
Student-employees are also the subject of a section of the fact sheet. The DOL notes that many working students are hourly, nonexempt workers who generally do not work more than 40 hours a week. Some students, however, receive a salary or other non-hourly compensation while working as teaching assistants, research assistants, or residential assistants. The fact sheet notes that teaching assistants whose primary duties are teaching qualify for the teacher exemption. The DOL does not generally consider research and residential assistants to be employees when they are enrolled in educational programs, and therefore they are usually not entitled to minimum wages or overtime compensation.
In addition to summarizing the guidance published by the DOL in May 2016, the fact sheet also supplements this guidance with details compiled from opinion letters, frequently-asked-question responses, and general DOL authority. Specific additions include the following:
- In its analysis of the teaching exemption, which generally applies to those “teaching, tutoring, instructing, or lecturing to impart knowledge” at an education institution, the DOL notes that this exemption may apply to faculty teaching online or remotely. Specific examples of those to whom the exemption could apply include “a part-time faculty member . . . whose primary duty is to provide instruction through online courses to remote, non-credit learners,” and an “agricultural extension agent” employed by an educational institution to travel and instruct farmers.
- In the exemption analysis for coaches, who may qualify for the teacher exemption if their primary duties are instruction on how to perform a sport, the DOL specifically notes that the amount of time the coach spends on such instruction is relevant, but not the exclusive factor, in determining exempt status.
- Educational institutions may want to consider whether the proportion of time spent by coaches on coaching/instruction compared with nonexempt duties, like manual work or recruiting, accurately reflects the “primary duties” of the position and whether reassessment of the coaches’ exemption might be necessary.
- The DOL also offers specific examples of higher education employees who might qualify for the executive employee exemption, including “deans, department heads, directors, and any other manager or supervisor” whose duties and compensation satisfy the executive employee exemption criteria.
- Finally, the DOL provides additional details regarding the “compensatory time” allowance for public universities. Under the FLSA, public universities or colleges that qualify as a “public agency”—meaning a “political subdivision of a State”—may compensate nonexempt employees with compensatory time off (“comp time”) rather than overtime pay. The DOL determines whether a college or university is a “political subdivision” by considering whether “(1) the State directly created the entity, or (2) individuals administering the entity are responsible to public officials or the general electorate.” Additionally, the fact sheet notes that employees engaged in a public safety, emergency response, or seasonal activity may accrue more than the general limit of 240 hours of comp time, up to 480 hours.
The issuance of this fact sheet emphasizes the relatively unique status of many higher education positions and the need for a tailored analysis of higher education employees’ duties to determine exempt status.