This fact sheet provides information on the exemption from minimum wage and overtime pay provided by Section 13(a)(1) of the FLSA as defined by Regulations, 29 CFR part 541, and discusses the applicability of such exemptions to employees in jobs that are common in higher education institutions.

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also include an exemption from minimum wage and overtime for certain employees in computer-related occupations.

Generally, in order for an exemption to apply, an employee's specific job duties and salary must meet the requirements of the Department's regulations, which require:

1. The employee must be paid on a salary basis that is not subject to reduction based on the quality or quantity of work (the "salary basis test"), rather than, for example, on an hourly basis;
2. The employee must receive a salary at a rate not less than the standard salary level required by 29 CFR 541.600 and listed at https://www.dol.gov/agencies/whd/overtime/salary-levels (the "salary level test"); and
3. The employee's primary duty must involve the kind of work associated with the exempt status sought, such as executive, administrative, or professional work (the "duties test").

Additional information concerning these exemptions is available in Fact Sheets 17A-G.
See https://www.dol.gov/agencies/whd/fact-sheets.

Exemptions for Common Higher Education Jobs

Teachers

A teacher is exempt from minimum wage and overtime protections if their primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge, and if they are performing that duty as an employee of an educational establishment. See 29 CFR 541.303. Educational establishments include elementary school systems, secondary school systems, institutions of higher education, and other educational institutions. See 29 CFR 541.204(b). If a bona fide teacher meets these requirements, the salary level and salary basis tests do not apply. See 29 CFR 541.303(d), 541.600(e).

Given these requirements, professors, instructors, and adjunct professors typically meet the requirements for this exemption. A faculty member who teaches online or remotely also may qualify for this exemption. The regulations do not restrict where bona fide teaching may take place, to whom the knowledge can be imparted, or how many hours a teacher must work per week to qualify for the exemption. The exemption would therefore ordinarily apply, for example, to a part-time faculty member of an educational establishment whose primary duty is to provide instruction through online courses to remote non-credit learners. The exemption could likewise apply, for example, to an agricultural extension agent who is employed by an educational establishment to travel and provide instruction to farmers, if the agent's primary duty is teaching, instructing, or lecturing to impart knowledge. Additionally, teachers of skilled and semi-skilled trades and occupations frequently meet the requirements for exemption. To determine a teacher's primary duty, the relevant inquiry in all cases is the teacher's actual job duties. Job titles or full/part-time status alone do not determine exempt status.

A teacher does not become nonexempt merely because they spend a considerable amount of time in extracurricular activities (such as coaching athletic teams or supervising student clubs). The teacher is exempt from minimum wage and overtime protections provided the teacher's primary duty is teaching.

Coaches

Athletic coaches employed by higher education institutions may meet the requirements for exemption. For example, they may provide instruction to student-athletes in how to perform their sport. However, a coach will not meet the requirements for the exemption if their primary duties are 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 exemption status.

Professional Employees

The FLSA includes exemptions from minimum wage and overtime protections for several types of exempt professional employees—such as learned professionals, creative professionals, teachers, and employees practicing law or medicine. In higher education, employees eligible for the professional exemption are often either teachers (as discussed above) or learned professionals (as described below). To qualify for the learned professional employee exemption, the employer must ensure all of the following requirements are met:

1. The employee's primary duty must be the performance of work requiring advanced knowledge;
2. The advanced knowledge must be in a field of science or learning; and
3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

See 29 CFR 541.301. Unless the employee is a teacher or practicing law or medicine, they must also satisfy the above-referenced salary basis and salary level tests to be exempt as a learned professional.

In higher education, examples of non-teacher learned professionals that generally may meet the duties requirements include certified public accountants, psychologists, certified athletic trainers, and librarians. Postdoctoral fellows, who conduct research at a higher education institution after completing their doctoral studies, likewise generally meet the duties requirements of the learned professional exemption, and they may additionally qualify for exemption as teachers if teaching is their primary duty. Of course, an employee's qualification for the exemption depends on their actual job duties and education. Job titles alone are not sufficient for determining whether an employee satisfies the duties test.

Administrative Employees

Various employees at higher educational institutions may qualify as exempt administrative employees. To qualify for the administrative employee exemption, the employer must ensure all of the following requirements are met:

1. The employee's compensation must satisfy the above-referenced salary basis and salary level tests;
2. The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
3. The employee's primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

See 29 CFR 541.200. Such administrative employees in higher education might include, for example, admissions counselors or student financial aid officers. An employee's qualification for the exemption depends on their actual job duties; job titles alone are not sufficient for determining whether an employee satisfies the duties test.

Notably, there are specific regulatory provisions for certain administrative employees—known as "academic administrative employees"—whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. To be exempt as an academic administrative professional, such employees can either meet the standard salary level requirement OR receive a salary which at least equal to the entrance salary for teachers in the same educational establishment where they are employed. See 29 CFR 541.204. Employees who work in higher education but whose work does not relate to the educational field (such as work in general business operations) do not meet the requirements to be considered exempt as academic administrative employees, but such employees are exempt if they pass the standard criteria for the executive, administrative, or professional exemptions. See 29 CFR 541.204(c).

In higher education institutions, exempt academic administrative personnel generally include department heads, intervention specialists who are available to respond to student academic issues, and other employees with similar responsibilities. Exempt administrative personnel would likewise generally include academic counselors who administer school testing programs, assist students with academic problems, and advise students concerning degree requirements. Again, whether an employee satisfies the duties test for these exemptions depends on the employee's actual job duties, not just the employee's job title.

Executive Employees

To qualify for the executive employee exemption, the employer must ensure all of the following requirements are met:

1. The employee must receive compensation that satisfies the above-referenced salary basis and salary level tests;
2. The employee's primary duty must be managing the enterprise or a customarily recognized department or subdivision thereof;
3. The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent (for example, one full-time and two half-time employees); and
4. The employee must have the authority to hire or fire other employees, or in the alternative, the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

See 29 CFR 541.100. Various positions in higher education institutions might qualify for the executive exemption, including deans, department heads, directors, and any other manager or supervisor whose job duties and compensation satisfy the above criteria.

Salary Requirements for Part-Time and Part-Year Staff

The standard salary level is not prorated for part-time employees. However, exempt employees need not be paid for any workweek in which they perform no work. See 29 CFR 541.602(a)(1).
Therefore, an exempt employee who works for a school 10 months out of the year only needs to receive the required salary level during the 10-month work period. See 29 CFR 541.602(a)(1). The standard salary level is a weekly earnings threshold, not an annual earnings threshold.

Additionally, employers may prorate over a full year the salary of an otherwise exempt employee who has a duty period of less than one year. Accordingly, a school may employ a nurse on a 10-month basis and pay the nurse the standard salary level only in the weeks in which the nurse works. Alternatively, the school may spread the nurse's salary payments over 12 months rather than 10 even though each individual payment would be less than the standard salary level.

Student-Employees

As a general matter, most students who work for a college or university are non-exempt workers and must be paid not less than the minimum wage and paid time and one half their regular rate of pay for all hours worked over 40 in a workweek.

However, the following are examples of students who may not be protected by the minimum wage and overtime requirements:

• Graduate Teaching Assistants. Graduate teaching assistants whose primary duty is teaching are exempt. Because they qualify for exemption as teachers, they are not subject to the salary basis and salary level tests.
• Research Assistants. Generally, an educational relationship exists when a graduate or undergraduate student performs research under a faculty member's supervision while obtaining a degree. Under these circumstances, the Department would not assert that an employment relationship exists with either the school or any grantor funding the student's research. This is true even though the student may receive a stipend for performing the research.
• Student Residential Assistants. Students enrolled in bona fide educational programs who are residential assistants and receive reduced room or board charges or tuition credits are not generally considered employees under the FLSA. They therefore are not entitled to minimum wages and overtime under the FLSA.

An employment relationship will generally exist when a student receives compensation and their duties are not part of an overall education program. For example, students who work at food service counters, sell programs or usher at events, or wash dishes in dining halls and anticipate some compensation (for example, money or meals) are generally considered employees entitled to minimum wage and overtime compensation.

Compensatory Time at Public Universities

Public universities or colleges that qualify as a "public agency" under the FLSA may compensate nonexempt employees with compensatory time off (or "comp time") in lieu of overtime pay. A college or university is a public agency under the FLSA if it is a political subdivision of a State. When determining whether a college or university is a "political subdivision," the Department considers whether (1) the State directly created the entity, or (2) individuals administering the entity are responsible to public officials or the general electorate.

If the public university or college qualifies as a public agency, nonexempt employees generally may not accrue more than 240 hours of comp time. However, employees engaged to work in a public safety activity, an emergency response activity, or a seasonal activity may accrue as much as 480 hours of comp time. See 29 U.S.C. 207(o)(3)(A). Private higher education institutions may not pay employees comp time in lieu of overtime pay.