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New Limits on Overtime

Labor Department answers questions about who gets overtime and who doesn't, with online instructors, among others, now no longer eligible.

April 17, 2018
 

The Labor Department answered some outstanding questions about academic overtime pay last week, putting such compensation officially out of reach for adjuncts teaching online, among other workers.

The department has already determined that adjuncts who teach face-to-face classes are generally not eligible for overtime. But questions remain about online or remote instructors and postdoctoral fellows who do work other than teaching, for example.

While higher education’s largest association for human resources professionals lauded the guidance, faculty groups said it was more of the same for chronically underpaid part-time instructors.

“I’m not surprised at all,” said Rudy Fichtenbaum, president of the American Association of University Professors and a professor of economics at Wright State University. “This is just a continuation of that rolling back [of protections for workers] and making sure that adjuncts continue to receive the same shitty pay they’ve been getting.”

The federal Fair Labor Standards Act requires that nonexempt employees receive minimum wages, as well as overtime pay for working beyond 40 hours per week. Professors, as historically salaried professionals whose primary work is teaching, are exempt from the act -- meaning they don’t get overtime. Yet many faculty advocates have pointed out that adjuncts now do much of the teaching across academe but lack the benefits and pay typically afforded to their full-time counterparts.

Moreover, faculty advocates say, lawmakers and administrators alike underestimate how much time adjuncts dedicate to teaching by looking at the number of hours they log in the classroom alone. There are papers to grade, student emails to monitor, lectures to prepare, advising and more, all outside classroom hours. Many adjuncts are in fact working “overtime” but not compensated for it.

The Obama administration sought to address some of the criticism of the labor standards act in 2016, not by lifting the controversial teacher exemption but by doubling the salary threshold for the so-called white-collar overtime exemption for executive, administrative and professional workers, to about $47,000 annually or $913 per week. The administration said millions more workers would have been eligible for overtime with the change, but the idea proved controversial with employers -- colleges and universities among them. Many institutions said they wished they could pay their employees more, but that doubling the salary threshold in one leap threatened their financial stability. A federal judge blocked the rule just before it was set to take effect.

New Exemptions

A new overtime rule proposal is expected later this year from the Labor Department. In the meantime, academic institutions and workers continue to have questions about who is eligible for overtime. Some institutions have asked if online instructors or those who work remotely are exempt, based on the teaching exemption. Many have also asked if postdocs who primarily do research or work other than teaching are eligible for overtime, as the Obama-era rule said they were not covered by the teaching exemption. Rather, it said they were professional employees subject to the new salary threshold for exemption from overtime.

To answer such questions, the Labor Department published a new fact sheet on the applicability of white-collar exemptions to common academic jobs.

A teacher is exempt, the fact sheet affirms, if their primary duty is teaching, instructing or lecturing to “impart knowledge” at an educational institution. That includes professors, instructors and adjunct professors, it says.

And, clearing up some long-standing ambiguity regarding online learning, the department said faculty members who teach online or remotely also may 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 department wrote. “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. To determine a teacher’s primary duty, the relevant inquiry in all cases is the teacher’s actual job duties.”

Athletic coaches also may qualify for the teacher exemption, since “teaching may include instructing student-athletes in how to perform their sport,” the notice says.

The department lists examples of exempt nonteacher “learned professionals,” such as librarians, psychologists, public accountants and certified athletic trainers. Learned professionals are defined as those who do work requiring advanced knowledge in a field of science or learning, "acquired by a prolonged course of specialized intellectual instruction."

Postdoctoral fellows -- many of whom who stood to gain much from the proposed Obama-era salary rule, due to their long hours and relatively low pay -- are also generally considered exempt learned professionals, provided they are salaried employees who make at least $455 per week (the current salary threshold), the memo says. As before, they may also qualify for the teacher exemption if teaching is their primary duty.

Regarding student employees, the department wrote that most students working for their institutions are hourly workers laboring under 40 hours per week. Yet some student employees are clearly exempt under the act, it says -- namely graduate teaching assistants whose primary duty is teaching. Research assistants studying under a mentor are not so much employees as trainees, it says, and student residential assistants are generally not employees, either. The Obama-era rule said much the same.

Students whose work is not part of an educational program -- such as dishwashers or ushers at campus events -- are employees entitled to minimum wage and overtime compensation, however, according to the department's memo.

Public institutions that qualify as public agencies under the act may compensate nonexempt employees with compensatory time off instead of overtime pay.

Andy Brantley, president and CEO of the College and University Professional Association for Human Resources, called the announcement “great news for higher ed” in an email.

In a blog post discussing the fact sheet, CUPA-HR highlighted the department’s new guidance on adjuncts who teach online or remotely, agricultural extension agents and coaches, and academic administrative personnel.

“The fact sheet issued today answers many of the lingering questions higher ed institutions encountered when they were preparing to comply with the [department’s] 2016 final rule and questions that have persisted since the rule was struck down by a federal district court,” CUPA-HR's post said.

Maria Maisto, president of the New Faculty Majority, a national adjunct advocacy group, said the guidance appeared to be “the next chapter in the saga of the effort by the Obama administration to revise the overtime rule and the pushback against that needed reform.”

Echoing her organization’s official comments on the 2016 final rule discussion, Maisto said that the long-standing teacher exemption was “ironically devised with the assumption that teachers from K-12 through higher ed would receive, as we put it, ‘professional wages commensurate with the educational preparation, responsibility and workload that this important occupation requires.’” Instead, she said, it has become one of the education’s “most reliable tools of exploitation, ensuring instead that faculty can be legally denied a living wage.”

One only need look at the ongoing K-12 teacher protests and adjunct activism for evidence, she said.

Fichtenbaum, of AAUP, said of the online teaching exemption in particular that people generally underestimate what it takes to teach a distance learning course. “Teaching them takes more preparation than maybe even walking in and doing a class face-to-face.”

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