Fair Labor Standards Act for paraprofessionals

The Fair Labor Standards Act (FLSA) came about in 1938 as a result of the Depression. It is a federal law that sets minimum wages and requires overtime for hours worked in excess of 40 hours in a week. Most paraprofessionals in Texas schools are covered by the overtime and minimum wage requirements of the FLSA; most teachers are not. Under the current FLSA regulations, all employees earning less than $23,660 per year, or $455 per week, are entitled to receive overtime regardless of their duties.

Who is covered by the overtime, minimum wage, and nursing mothers 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 are likely entitled to overtime pay even if they are salaried.

What are the minimum wage requirements?
As of July 24, 2009, the federal minimum wage is $7.25 an 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. 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 rest breaks or meal 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.

Nursing mothers
A recent change to the FLSA, as part of the Health Care Reform Act, requires all employers who are subject to the FLSA to provide reasonable break times to mothers who wish to express breast milk. This requirement is in effect for one year after a child’s birth. In addition, employers must provide a location, other than a bathroom, for the mothers to express milk. This location must be free from intrusion from coworkers and the public. An employee does not have to be paid for this time. If an employer has less than 50 employees, this requirement would not apply if the employer would experience “undue hardship” as a result of providing breaks to nursing mothers to express milk. This provision applies only to employees covered by overtime and minimum wage requirements.

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. Also, the U.S. Department of Labor/Wage and Hour Division is charged with enforcing the FLSA and may be reached toll-free at (866) 4USWAGE (487-9243). The department maintains a website.

Updated: 08/18/10