On April 12, 2018, the DOL released a new Fact Sheet relating to overtime pay at higher education institutions. The Fact Sheet confirms what many institutions viewed as a grey area—whether faculty teaching online or remotely are properly classified as exempt under the FLSA. The Fact Sheet states that, so long as the faculty member’s actual job duties meet the teacher exemption, the faculty member will be exempt. The teacher exemption requires that the employee’s primary job duty be teaching, tutoring, instructing, or lecturing to impart knowledge, and he or she is performing that duty as an employee of an educational establishment. If the individual meets these requirements, the salary level and salary basis test will not apply.
While a Fact Sheet is not binding authority, it does provide guidance regarding the DOL’s perspective on certain topics and a glimpse into the DOL’s enforcement priorities. Fact Sheets also provide institutions the opportunity to make operational changes or further support a position the institution has already taken.
The Fact Sheet further clarifies that the following positions common in higher education may be eligible for exemption:
- Part-time faculty
- Athletic coaches
- Intervention specialists
- Academic counselors
- Certified athletic trainers
Interestingly, the Fact Sheet also contains guidance regarding a current hot button issue—the status of graduate student workers. The Fact Sheet states that graduate teaching assistants whose primary duty is teaching are exempt from the FLSA overtime pay rules under the teacher exemption. This appears to assume that graduate student workers are employees of the institution. On the other hand, the DOL states that research assistants have an educational relationship with the institution, rather than an employment relationship. Whether graduate student unionizers seize on the “exempt” designation of graduate student teachers as support for their campaigns remains to be seen.
Finally, the Fact Sheet notes that the DOL is in the process of revising the regulations related to the executive, administrative, and professional exemptions. However, it does not provide any indication of the possible timing for these new regulations.
The Fact Sheet can be viewed here.