8 Common Higher Ed Positions and Their (Likely) FLSA Status Under the New Overtime Rule

There is no doubt the Department of Labor’s new FLSA overtime rule will significantly impact higher education. Colleges and universities across the country will need to reclassify hundreds of positions as well as address resulting morale, salary compression, budgetary and service delivery issues — all by the December 1 compliance deadline.

If your head hasn’t stopped spinning since DOL announced the rule a few weeks ago, rest assured you’re not alone. FLSA-related queries have dominated CUPA-HR Connect over the past few weeks, and more than 7,000 attended the May 25 CUPA-HR webinar “FLSA Overtime Final Rule: What You Need to Know and Do Now” (if you missed it, you can view it on-demand at no charge).

The most common questions we’ve fielded here at CUPA-HR headquarters are those related to the exempt/non-exempt status of positions like post docs, resident directors, interns, coaches and partial-year employees. With often odd hours, the nature of the work performed and the difficulty in tracking hours, these positions are giving higher ed a headache.

In the webinar referenced above, Alex Passantino, former acting administrator of the Department of Labor’s Wage and Hour Division and partner at Seyfarth Shaw, shed some light on some of these higher ed-specific positions.

• Medical and Veterinary Interns/Residents – Medical and veterinary interns and residents will qualify as exempt on the medical professional provision, so the salary test does not apply to these positions.
• Coaches – Coaches may qualify as exempt under the teacher exemption, almost certainly if they also teach a class(es) in addition to their coaching duties. But in guidance issued in 2009, DOL asserts that coaches who spend the majority of their time “instructing athletes in their sport” can also fall under the teacher exemption. However, coaches who spend the majority of their time recruiting will not fall under the teacher exemption and will therefore need to meet the salary threshold in order to be considered exempt.
• Athletic Trainers – It is possible that athletic trainers may also fall under the teacher exemption if they have significant instructional responsibilities, or they may fall under the “learned professional” exemption – but Passantino urges careful consideration and a comprehensive position audit for athletic trainers to ensure they meet either of these exemptions.
  For more on payment of coaches and athletic trainers under the new rule, see the white paper Passantino created for CUPA-HR members (log in required).
• Resident Directors – Resident directors can often fall under the administrative/executive exemption, but they must meet the salary threshold of $47,476, and DOL has said that housing does not count toward the salary level.
• Postdoctoral Scholars – Post docs with the primary duty of teaching as opposed to research may meet the teaching provision, but otherwise they’ll need to be paid the salary threshold to qualify as exempt.
• Admissions Counselors – In order for admissions counselors to fall under one of the standing exemptions, they will need to exercise decision making authority on recruitment and admission matters. Most admissions counselors do not exercise such decision-making authority, and therefore will likely need to either meet the salary threshold or be classified as non-exempt.
• Part-Time Employees – Part-time employees (except for those that fall under the already-carved out exemptions) that are paid below the salary threshold of $913/week are considered non-exempt by DOL.
• Partial-Year Employees – If an employee works nine or 10 months but is paid over 12 months and meets the salary threshold during those nine or 10 months, he or she is exempt. However (and this a big one!), these employees cannot do ANY work outside of those nine or 10 months, or they’ll have to be paid for that work, and their exempt status could be in jeopardy.

While this guidance can certainly be helpful in determining which employees may qualify for which exemptions, Passantino reminds us that job titles alone are not enough to prove exemption status —  it’s the job duties that count.

To learn more about the new overtime rule and how institutions are moving toward compliance, view the on-demand webinar or register for an upcoming virtual workshop.