New York Labor and Employment Law Report
USDOL Releases New FLSA Guidance for Higher Education Institutions
April 18, 2018
By: Andrew D. Bobrek
The U.S. Department of Labor just released a new “Fact Sheet,” targeted specifically at higher education institutions and their compliance with the Fair Labor Standards Act.
This guidance provides new insight on several unsettled issues frequently discussed during the USDOL’s prior attempt to raise the minimum salary threshold for so-called “white collar” exempt employees. For example, the guidance provides that the “teaching professional” exemption may include faculty members who provide remote instruction to students. Specifically, the Fact Sheet states: “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.” While the Fact Sheet provides helpful guidance on this and other topics, questions will remain with respect to the exempt status of other higher education positions. Colleges and universities must also remain mindful of any separate wage and hour requirements that may exist under state law, including any higher minimum salary requirements for exempt employees.
Notably, the Fact Sheet also indicates in a footnote that new rulemaking on the FLSA’s minimum salary requirement will be forthcoming. Readers will recall that the USDOL, under President Obama’s administration, attempted unsuccessfully to raise this salary threshold to $913 per week. Although the USDOL is still enforcing a minimum salary requirement of $455 per week under the FLSA, there are expectations that future rulemaking could set a new minimum threshold at around $675 or so per week (or around $35,000 annualized).