Printer-Friendly Version
FLSA2008-11
December 1, 2008
Dear Name*:
This is in response to your request for an opinion on whether certain Assistant
Athletic Instructors (AAIs) at institutions of higher education qualify
as teachers who are exempt from the minimum wage and overtime pay requirements
of the Fair Labor Standards Act (FLSA). We believe the AAIs you describe
qualify for exemption as teachers under section 13(a)(1) of the FLSA and
29 C.F.R. § 541.303.1
According
to the information you furnished, the AAIs teach proper skills and skill
development to student-athletes and are required to have a bachelor’s degree
with a master’s degree (or additional experience) preferred. You indicated
that their teaching responsibilities encompass at least 50% or more of their
time and include instruction of physical health, team concepts, and safety.
The AAIs, who work under the supervision of a head coach, are responsible for
designing instructions for individual student-athletes and for specific team
needs, and thus have a great deal of independent discretion and judgment as to
the manner and method of teaching. Students receive academic credit for their
participation in collegiate team sports.
Section
13(a)(1) of the FLSA exempts from the Act’s minimum wage and overtime pay
requirements any employee employed in a bona fide executive, administrative, or
professional capacity. The term “employee employed in a bona fide professional
capacity” also includes “any employee with a primary duty of teaching,
tutoring, instructing or lecturing in the activity of imparting knowledge and
who is employed and engaged in this activity as a teacher in an educational
establishment by which the employee is employed.” 29 C.F.R. § 541.303(a).
There is no minimum education or academic degree required under the regulations
for the teacher exemption. See Wage and Hour Opinion Letter FLSA2006-41 (Oct.
26, 2006); Wage and Hour Opinion Letter FLSA2005-39
(Oct. 13, 2005). Athletic instructors whose primary duty is teaching in
an educational establishment would qualify for the exemption whether or
not they have a particular academic degree. By contrast, athletic instructors
whose primary duty is not related to teaching would not qualify for the
teacher exemption. Also, the regulations do not require that exempt teachers
be paid on a salary basis. See 29 C.F.R. § 541.303(d). Having
a primary duty of teaching generally involves, “by its very nature, exercising
discretion and judgment.” Wage and Hour Division Fact
Sheet #17D.
The
AAI position description you sent us includes a number of duties that are not
related to teaching, such as developing effective recruitment strategies,
recruiting and following up on prospective students, researching and targeting
high schools and athletic camps as sources for potential student-athletes, and
visiting high schools and athletic camps to conduct student interviews. As
mentioned above, however, you stated that these AAIs spend more than 50% of their
time on teaching activities. This proportion is significant because “employees
who spend more than 50% of their time performing exempt work will generally
satisfy the primary duty requirement.” 29
C.F.R. § 541.700(b).
Although
not fully described in your letter, we believe the institutions of higher
education you inquired about are colleges that would qualify as educational
establishments for purposes of the teacher exemption. An “educational
establishment” is defined as “an elementary or secondary school system, an
institution of higher learning or other educational institution.” 29
C.F.R. 541.204(b). Accordingly, based on your representation that the AAIs
spend more than 50% of their time teaching in an educational establishment, we
believe that they would qualify for exemption from the FLSA’s minimum wage and
overtime pay requirements.
This opinion is based
exclusively on the facts and circumstances described in your request and is
given on the basis of your representation, explicit or implied, that you have
provided a full and fair description of all the facts and circumstances which
would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your request
might require a different conclusion from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or
litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is
responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
*
Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
|