The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime standards employees who qualify as professional employees. 29 USC 213(a)(1). The professional employee exemption is made up of three different categories:
Teacher Professional Exemption Test
The professional exemption applies to employees who:
- have a primary duty of teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and
- do so in an educational establishment.
There are no minimum salary requirements for the teaching professional exemption. 29 CFR 541.303(d)
Educational Establishments
Educational establishments include elementary or secondary school systems, an institutions of higher education, or other educational institutions. Elementary and secondary schools include day or residential schools that provide elementary or secondary education, as determined under state law. Typically, such education includes the curriculums in grades 1 through 12 and may include introductory programs such kindergarten and nursery school. Other educational establishments include special schools for mentally or physically disabled or gifted children. Factors relevant in determining whether post-secondary career programs are educational institutions include whether the school is licensed by a state agency or accredited by a nationally recognized accrediting organization. Also, for purposes of the exemption, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit. 29 CFR 541.204(b); 29 CFR 541.303(a)
Exempt Teacher Classifications
Teachers that are exempt include, but are not limited to:
- regular academic teachers
- kindergarten or nursery school teachers
- teachers of gifted or disabled children
- driving instructors
- flight instructors
- vocal instructors
- music instructors
Impact of Responsibility for Extracurricular Activities
Faculty members who are teachers but also spend a considerable amount of their time in extracurricular activities, such as coaching athletic teams or acting as an advisor in drama, speech, debate, or journalism qualify for the professional exemption. 29 CFR 541.303(a)
Teaching Certificate or License
A teachers who possess a teaching certificate or license and engages in teaching as required qualifies for the exemption regardless of the type of license possessed ( e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited). However, because some educational establishments do not require teachers to possess a license or certificate, possessing a teaching license or certificate is not necessary for a teacher to qualify for the professional exemption. 29 CFR 541.303(c)
