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The FLSA came about in 1938 as a result of the Depression. It is a federal law that requires overtime for hours worked in excess of 40 hours in a week, and sets minimum wages. Most paraprofessionals in Texas schools are covered by the overtime and minimum wage requirements of the FLSA; most teachers are not. Effective Aug. 23, 2004, the Department of Labor (DOL) revised the FLSA regulations – the first major overhaul of the overtime rules in decades. The most significant change to the overtime rules is that a floor was set under which all employees are guaranteed to receive overtime. All employees who earn less than $23,660 per year, or $455 per week, are entitled to receive overtime regardless of their duties. Additionally, the DOL revised the tests to determine if an employee is covered by the overtime rules or not.

Who is covered by the overtime and minimum wage requirements of the FLSA?

The short, quick (and mostly true) answer is that if you are paid hourly and not categorized as an executive, administrator or professional (teacher, counselor, etc.), you are probably entitled to receive overtime pay.

Covered employee categories would include secretarial support, education aides, hall and lunchroom monitors, custodial workers, bus drivers, cafeteria workers, security personnel and warehouse workers. A teacher who spends more than 50 percent of his/her working hours within one week performing in a paraprofessional role (e.g., driving a bus) may be able to claim overtime.*

* A note about overtime:

Both salaried and hourly workers may be entitled to overtime pay. Those in the “executive,” “administrative” or “professional” category who are paid hourly may receive overtime pay. Employees such as education aides or others listed in the covered employee categories also may be entitled to overtime pay even if they are salaried.

What are the minimum wage requirements?

Since Sept. 1, 1997, the minimum wage requirement has been $5.15 per hour.

What about overtime?

Generally, the FLSA requires that employees who work more than 40 hours in a one-week period be paid at a rate of time and one-half for hours worked in excess of 40. Some of the factors to be considered:

Workweek
The employer can begin the workweek on any day of the week and at any hour of the day, but it must be a period of 168 hours during seven consecutive 24-hour periods. Most workweeks are the same as calendar weeks, running from Sunday through Saturday, but a workweek could start on Tuesday and run through Monday, for example.

To determine if someone has worked in excess of 40 hours, each workweek must be reviewed independently.

Hours worked
Generally, employees who are “engaged to wait,” meaning that they are told to be available to do something, can count the “waiting” time as work hours. On the other hand, if an employee is completely relieved of all duties until a certain definite time, and can use the time as the employee sees fit, the “waiting” time does not count as work hours.

Once an employee starts the workday, all time spent traveling must be counted as hours worked; however, traveling to and from the workplace does not count.

Volunteer work
A covered employee can volunteer to work without pay if (1) the employee performs services different from those the employee usually performs; (2) the employee offers to perform the services freely and without coercion; and (3) the services support a civic, charitable or humanitarian purpose. The district must compensate the employee if the work does not satisfy all of these criteria. A finance clerk cannot “volunteer” to take money and keep the books for a fund-raising event, and an administrator cannot imply that “team players” volunteer; i.e., “no volunteer work, no job,” in order to encourage an “offer” to volunteer.

Overtime compensation generally must be paid on the next payday following the performance of the work.

Compensatory time
A school district can require an employee to take compensatory time in lieu of overtime pay if the employee agrees to that arrangement in writing before performance of the work. If the employee has not signed an agreement to accept compensatory time, the employee can object to a request to do so and insist on receiving overtime pay. An employer must honor an employee’s request to use compensatory time within a reasonable time after the request unless the use of compensatory time would “unduly disrupt” the employer’s business. The proper calculation of compensatory time is 1.5 times the hours worked in excess of 40. An employee must be allowed to use the time within a reasonable period after making a request. Upon termination of employment, any unused compensatory time accrued by an employee must be paid to the employee.

Is an employer required to give employees rest breaks and meal breaks?
The FLSA does not require an employer to provide breaks to employees. If a break is 20 minutes long or longer and the employee is completely relieved of duties, it is not counted as time worked even if the employee is required to remain on school premises. The employee must then make up the time during that week in order to work a full 40 hours. The only time meal periods don’t count as hours worked is if they are: at least 30 minutes long, the employee is completely relieved of all duties, and the employee is not required to remain at the duty post.

What if my employer is not complying with the FLSA?
TCTA members with questions about the Fair Labor Standards Act may call TCTA staff attorneys at (888) 879-8282. Additionally, the U.S. Department of Labor/Wage and Hour Division is charged with enforcing the FLSA and may be reached at (210) 308-4515. The department maintains a Web site. Matters in which wages are owed an employee are handled by the Texas Workforce Commission Civil Rights Division. Phone the commission at (888) 452-4778 or visit their Web site.

 

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