The Fair Labor Standards Act (FLSA) came about in 1938 as a result of the Great Depression. It was part of the New Deal championed by President Franklin D. Roosevelt. It is a federal law that sets minimum wages and currently 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.
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.
To be exempt from the overtime requirement, most employees must meet both a duties test and also a minimum salary test. The minimum salary to be exempt is $1,128 per week. This means that the employee must earn more than this weekly threshold, in addition to satisfying the duties test, to be exempt from overtime requirements. Please note that the teacher exempt category is not subject to the salary test. That means if you are categorized as a “teacher,” then you are not entitled to overtime pay.
Covered employees include secretaries, education aides, hall and lunchroom monitors, custodial workers, bus drivers, cafeteria workers, security personnel and warehouse workers. A teacher who spends more than 50% of working hours within one week in a support role (e.g., driving a bus) may be able to claim 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 in the covered employee categories are likely entitled to overtime pay even if they are salaried.
The federal minimum wage has been $7.25 an hour since 2009. Texas has the same minimum wage of $7.25 an hour.
Generally, the FLSA requires that employees who work more than 40 hours in a one-week period be paid at a rate of 1.5 times their normal hourly rate for hours worked in excess of 40. Some factors to consider:
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 these criteria. A finance clerk cannot “volunteer” to take money and keep the books for a fundraising event, and an administrator cannot imply that “team players” volunteer; i.e., “no volunteer work, no job,” to encourage people to volunteer.
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.
State law provides that public employers must provide a reasonable break time each time an employee has need to express breast milk and must provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion. The law also prohibits discrimination against an employee who has asserted these rights.
The federal PUMP Act, passed in 2023, extends federal protection for nursing mothers that had previously been applicable only to employees subject to the overtime and wage provisions of the Fair Labor Standards Act, thus extending these protections to FLSA exempt employees such as teachers. The federal law provides protections similar to the state law but adds federal enforcement to these protections.
The federal requirement does not apply to an employer with fewer than 50 employees if the employer would experience “undue hardship” as a result of providing such breaks.
The FLSA does not require an employer to provide rest breaks or meal breaks to employees. If a rest break is 20 minutes 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 do not 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.
TCTA members with questions about the Fair Labor Standards Act may call TCTA staff attorneys at 888-879-8282.
The U.S. Department of Labor Wage and Hour Division is charged with enforcing the FLSA and may be reached at 866-4USWAGE (866-487-9243). The department maintains a website at www.dol.gov/whd.
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