Monday, November 5

Hey Fletch … Our church has a preschool with part-time teachers. We have been treating them as exempt employees, as they are teachers. They don’t get paid for working after hours, home visits or for the Christmas play rehearsals. Are we legal?

DRF—In a word, no. You are not “legal.” Generally preschool teachers are not seen in the same category as credentialed teachers. 

The topic has been widely debated and the Department of Labor has a document about preschool teachers.

Preschool Teachers: Bona fide teachers in preschool and kindergarten settings may qualify for exemption from the minimum wage and overtime pay requirements as “professionals” under the same conditions as a teacher in an elementary or secondary school. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in this activity as a teacher in educational establishment. It should be noted that, although a preschool may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs for the facility’s children would ordinarily not meet the requirements for exception as teachers under the applicable regulations.

This is an interesting paragraph. At the end, we see that exemption is rare for preschool teachers. I suppose if all your teachers had state certificates in preschool education, they could be considered professional.

A preschool had to pay over $92,000 in back wages and fines for not paying hourly rates and overtime. The article noted:

The FLSA has an overtime exemption for teachers at elementary or secondary schools. The day-care center did not qualify as an elementary or secondary school. Although its employees were classified as teachers, they still were eligible for FLSA overtime compensation.

Another article talks about the duties test of teachers: 

You must also pass one of the duties tests. The law exempts people who meet certain qualifications in their duties as a professional, executive or administrator … In most states, licensed teachers who teach in a qualified educational institution are considered exempt employees, not subject to overtime pay. The key word here is licensed. Under the professional test, an employee must:

1. perform work requiring advanced knowledge

2. in a field of science or learning and

3. acquired by a prolonged course of specialized intellectual instruction.

A licensed teacher who teaches kindergarten or nursery school, disabled children or skilled and semi-skilled trades, meets the duties test of the professional exemption.

I would strongly recommend immediately reclassifying your preschool teachers as non-exempt. They need to track their hours, take meal and rest breaks, as well as follow other FLSA exemptions. You will need to give back-pay to teachers who have worked at home, done overtime, or helped in rehearsals for the Christmas play.