The Fair Labor Standards Act (FLSA) establishes parameters for minimum wage, overtime pay, recordkeeping, and employing minors.
“Non-Exempt” positions are those which are covered by the FLSA. Non-exempt employees are considered hourly employees. They are entitled to a minimum wage of not less than $7.25 and must receive overtime or compensatory pay for hours worked over 40 in a week.
“Exempt” positions are those which are not covered by the FLSA. Exempt employees generally are considered to be “salaried” positions, and do not normally receive additional compensation for hours worked above 40 in a work week.
To qualify as exempt under the FLSA, employee must meet both a salary and duties test, which are outlined in the guidelines established by the Department of Labor.
FLSA Determination Tools
FLSA Frequently Asked Questions PDF
View FLSA Frequently Asked Questions
- Are Residence Hall Assistants exempt or nonexempt under the FLSA?
Neither. Generally, Residence Hall Assistants (or “dormitory counselors”) are not considered employees for FLSA purposes, as long as they are students and receive reduced room and board charges. A court action (Marshall v. Regis Educational Corporation, 666 F.2d 1324 (10th Cir. 1981) specifically held that student residence hall advisors were not employees covered by the FLSA because, taking into account the totality of the circumstances, the students were primarily receiving personal educational benefits from their service. Moreover, the DOL Field Operations Handbook states that if a college student (who is in a bona fide educational program) serves as residence hall assistant and receives remuneration in the form of reduced room or board charges, payment of cell phone expenses, tuition credits and the like, that student is not an employee within the meaning of the FLSA.
- Can UW institutions still engage volunteers?
Yes. But an employee may not perform volunteer activities that are the same or similar to the activities the employee is employed to perform.
Under the FLSA, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception – public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed. There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.
See DOL Guidance on Volunteers and on Public Sector Volunteers
- If a part-time lecturer also holds a part-time non-instructional academic staff position, does the employee qualify for the exemption as a teacher?
It depends. If the employee’s primary duty is teaching, he or she qualifies for the teachers’ exemption.
- Do coaches and assistant coaches qualify for the teacher exemption?
Coaches fall under the teacher exemption when their primary duty is teaching. In the white paper entitled “Payment of Coaches and Athletic Trainers under Federal Law,” CUPA-HR’s attorney maintains that head coaches are generally exempt because they usually have a primary duty of teaching. Regarding assistant coaches, an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. In DOL’s Fact Sheet #17s, DOL states:
“Athletic coaches employed by higher education institutions may qualify for the teacher exemption. After all, teaching may include instructing student-athletes in how to perform their sport. But a coach will not qualify for the exemption if his or her primary dutiesare recruiting students to play sports or visiting high schools and athletic camps to conduct student interviews. The amount of time the coach spends instructing student-athletes in a team sport is relevant, but not the exclusive factor, in determining the coach’s exempt status.”
- Do daycare center employees qualify for the “teacher” exemption?
It depends. Preschool teachers and other daycare center employees who are employed by a UW System institution are FLSA exempt if their primary duty is teaching. In its Field Operations Handbook DOL states that preschool employees “engaged in the intellectual activities of teaching, tutoring, instructing, or lecturing in order to impart knowledge” meet the primary duty test for exemption as teachers. But “employees whose primary duty is to provide custodial care for children” do not qualify for the teacher exemption.
- Are summer camp counselors exempt from FLSA minimum wage and overtime requirements?
Generally, yes. As long as the camp counselors do not also perform other duties for their employer while they are working as counselors, they are exempt from FLSA minimum wage and overtime requirements because summer camps are recreational establishments that do not operate more than seven months in a year. DOL’s Fact Sheet #18 provides a summary of the FLSA exemption for employees of camps or recreational establishments.
- Are student assistants subject to FLSA requirements?
The following table lists the probable FLSA status of individuals with student assistant job codes:
Position Job Codes FLSA Status Fellow Y21NN Non-employee for the purposes of the FLSA – a fellowship does not create an employment relationship Scholar Y22NN Non-employee for the purposes of the FLSA – a scholarship does not create an employment relationship Trainee Y23NN If the primary beneficiary of the work performed is the individual, non-employee for the purposes of the FLSA Advanced Opportunity Fellow Y26NN Non-employee for the purposes of the FLSA – a fellowship does not create an employment relationship Teaching Assistant Y31NC
Exempt employee – primary duty is teaching (See DOL’s Factsheet #17s) Research Assistant Y41NN If the primary beneficiary of the work performed is the individual, non-employee for the purposes of the FLSA Lecturer (SA) Y30NN Exempt employee – primary duty is teaching (See DOL’s Factsheet #17s) Program Assistant Y42NC
Employee for the purposes of the FLSA – generally nonexempt, but may qualify for an exemption Project Assistant Y43NC
Employee for the purposes of the FLSA – generally nonexempt, but may qualify for an exemption Graduate Assistant Y44NN FLSA exempt employee if primary duty is teaching, nonexempt employee if duties are not part of an overall education program (See DOL’s Factsheet #17s) Undergraduate Assistant Y51NN Employee for the purposes of the FLSA – generally nonexempt, but may qualify for an exemption Undergraduate Intern Y52NN If the primary beneficiary of the work performed is the individual or if the internship involves activities generally recognized as extracurricular, non-employee for the purposes of the FLSA (See DOL FOH 10b24(b))
- Will part-time academic staff or university staff employees who work less than 40 hours in a workweek, but work more than their scheduled hours, be eligible to accrue comp time?
- Will nonexempt C-basis academic staff continue to receive payment for legal holidays when the university is closed?
Yes. Nonexempt C-basis academic staff will continue to receive payment on legal holidays even though they do not work on those days.
- Will student help employee be considered exempt if they have a concurrent appointment that is exempt under FLSA guidelines (ex: Teaching Assistants, Research Assistants, etc.)
No, even if the employee’s primary duties are considered exempt under the FLSA guidelines the student help appointment will remain non-exempt.
- Will employees who transfer from a non-exempt position on the bi-weekly payroll to an exempt position on the monthly/academic payroll remain on the bi-weekly payroll?
Yes, per UWSS any employee who is on the bi-weekly payroll will remain on that even if they are transferring to a job that is generally on the monthly payroll (ex: Teaching Assistants, Lecturers, etc.). Please keep in mind the conversion for annual and academic employees:
- Annual salary / 2080 = hourly rate for annual (12 month) employees
- Academic salary / 1560 = hourly rate for academic (9 month) employees
- For employees who were converted to non-exempt since they earned less than the FLSA salary threshold but received a promotion and/or pay increase that put them over the salary threshold, will they convert to the monthly or academic pay period?
No, all employees on the bi-weekly payroll will remain on that going forward.
- Will the salaries of part-time employees be pro-rated to keep their salaries above the new threshold?
No. Pay for part-time appointments will not be pro-rated under the new regulations. An employee with a .5 FTE appointment, to a position that would pay $60,000 (over the threshold) for 1.0 FTE, is paid $30,000. $30,000 is below the anticipated minimum salary threshold, and the employee will be nonexempt and paid on the bi-weekly payroll period.
FLSA Threshold Exemption Job Aid PDF
View FLSA Threshold Exemption Job Aid
|Position(s)||FLSA Status||FLSA Salary Threshold Exemption|
|Research Assistants||Exempt||Not Subject to FLSA|
|Fellows||Exempt||Not Subject to FLSA|
|House Fellows (RA’s)||Exempt||Not Subject to FLSA|
|Project Assistants||Non-Exempt||Not Applicable|
|Exempt position (ex: Lecturer) with concurrent non-exempt (ex: LTE)||FLSA status will be determined based on employee’s primary duty||If FLSA status determined to be exempt, exemption would be Multiple Jobs. (If non-exempt, FLSA Salary Threshold Exemption not applicable).|
UW System Resources
U.S. Department of Labor