Transcript What Will You Do?

Wage / Hour for Independent Schools
Debra Wilson, NAIS
Be sure to write . . .
 [email protected]
 202 973 9716
 What is up with the Fair Labor Standards Act?
 Why is it a big deal for schools?
 What are schools doing?
Getting into the FLSA Mindset
 Exempt from the FLSA = exempt from overtime (work until
you get it done, doesn’t matter how long it takes)
 Nonexempt from FLSA = not exempt from overtime (time
and a half)
 What about state law? Usually follows federal – should be
familiar with both.
 Standard most beneficial to employees prevails.
 Anyone unionized? Cannot bargain away FLSA
Figuring out Wage & Hour
 How much are you paying?
– $455 per week or $23,660 per year, paid same every
week (not based on what or how much is accomplished)
– Does not apply to teachers
 Which exception? – note title not determinative
 Really want to have good, accurate job descriptions,
preferably those that use the statutory language.
 Want to review what people actually do regularly, because
you can get hit here as well.
Executive Exemption
– The employee’s primary duty must be managing the
School, or managing a customarily recognized
department or subdivision of the School;
– The employee must customarily and regularly direct the
work of at least two or more other full-time employees
or their equivalent; and,
– The employee must have the authority to hire or fire
other employees, or the employee’s suggestions and
recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other
employees must be given particular weight.
Executive Cont’
 On the hiring and firing:
– Part of job description?
– Frequency with which recommendations are made
requested, and relied upon.
– Should generally relate to employees indiv. directs, not
occasional suggestions
– Okay if higher level individual has more input or
individual does not have actual authority to fire
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Administrative
– The employee’s primary duty must be the performance
of office or non-manual work directly related to the
management or general business operations of the
school.
– The employee’s primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance.
Administrative Employees in Educational Setting
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Primary duty is performing administrative functions
directly related to academic instruction or training in an
educational establishment or department or subdivision
thereof.
performing work related to the academic operations
and functions in a school rather than to
administration functions such as general business
operations.
Curriculum, quality and methods of instruction,
measuring and testing learning potential
New and covers the new positions that have popped up
more frequently in past years
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Professional Exemption
 Learned, artistic and teaching professions
 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;
 Note on the teacher salary . . .
Administrative Cont’
 Primary Duty – main, major, most part –character of job as a
whole.
 Directly related – must perform work directly related to
assisting with the running or servicing of School.
 Discretion and Independent Judgment – Implies that
individual has authority to make independent choice free
from immediate direction.
– Really is the screw-up test: how much opportunity is
there to do so, and what difference would it make?
Professional Exemption Cont’
 Teachers Covered
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Regular teachers
Kindergarten teachers
Teachers of gifted or disabled
Teachers of skilled or semi-skilled trades and occupations
Teachers of drivers ed
Home ec teachers
Vocal or instrument music teachers
So how do you approach
 How much are they making?
– 23,600 or $455 per week
– Even for part –time
– Unless teacher or Admin / Educ.
 What do they do? (primarily)
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Executive
Administrative / business
Administrative / education related
Teacher / other Professional
Standard Hypothetical
 You have a fantastic new assistant director of admissions.
He has taken over the recruitment in 1/3 of your key
recruiting area and other bigger responsibilities. However,
being the newest person in your admissions office, he also is
responsible for most of the administrative tasks: sending out
form letters, filing, etc. Is this person exempt or nonexempt?
 1. What is he making?
 2. Which exemption?
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Executive
Administrative
Educational Administrative
Professional
Dedicated Employee
 Your head’s assistant has been working at your school for 25
years. She is definitely nonexempt. However, the school is
her life – she comes in at 6:00 and leaves at 6:30. She says
that she will gladly volunteer her overtime to the school.
 What do you say?
– Generally – cannot volunteer for something that is
similar to job being done for the school. Period.
– So what do you do?
Assistant Coaches and Similar Stations
 What about my assistant coaches?
 Stipends?
 Now hourly?
What is an independent contractor?
 Are they?
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Services integral to employers business?
Permanency of relationship?
Amount of contractor’s investment in equipment?
Nature and degree of control of employer
Contractor’s opportunity for profit and loss and
Contractor’s competition in marketplace for success of
enterprise (are they really out there competing?)
 Things to be sure about: contract, taxes and insurance, I-9 in
contract, pay by 1099, not on payroll, not covered unempl.
or workers comp.
 Other common questions:
 What about comp time?
 What about teachers’ assistants?
 What about requiring time clocks?
 Choice between payment plans?
How do we approach this issue?
 Update everyone’s job description and titles. Makes sure you
really know what people are doing.
 You will find that approximately 5-10% of your staff is not
readily determinable.
 Work with your legal counsel on making the call on those 5-
10%.
 Know in advance how you are going to track time in a way
that will work for your school
 Review regularly.