By Pamela Fyfe • June 14, 2008 • Ask Rita in HR [1] Email [2] Print [3]

Dear Rita:

I’m a daycare worker for a nonprofit agency. My employer pays me a salary and refuses to pay overtime when I work more than 40 hours a week. The executive director says I’m not entitled to overtime pay because I am a "salaried teacher." I think the real issue is whether I am an exempt employee. I don’t supervise other employees and I don’t have a college degree or a license. What advice can you give me? -- Underpaid and Overworked

Dear Underpaid,

Your instincts are right on this one. From the facts you have given me you do not qualify as an exempt employee.

Some employers think that paying an employee a salary or designating an employee a "teacher" exempts that employee from the overtime rules. This is simply not the case.

Keep track of all overtime hours worked. If your employer refuses to pay overtime, you can contact your state Department of Labor for help. It is in your employer's best interest to properly classify you as nonexempt.

There are two tests that an employee must pass in order to achieve exempt status. The first is the threshold salary test. The Fair Standards Labor Act (FSLA) requires an exempt
employee to make at least $455 per week ($1971 per month). Your state may have a higher threshold. For example, in California, the threshold salary is twice the state minimum wage of $8 per hour, or $2773 per month. An employee who does not make the higher of the federal or state threshold wage is automatically paid overtime for all hours worked.

You must also pass one of the duties tests. The law exempts people who meet
certain qualifications in their duties as a professional, executive or administrator. Since you are a nursery school teacher and do not supervise other employees, I will focus on the professional duties test. In most states, licensed teachers who teach in a qualified educational institution are considered exempt employees, not subject to overtime pay. The key word here is licensed. Under the professional test, an employee must:

1. perform work requiring advanced knowledge

2. in a field of science or learning and

3. acquired by a prolonged course of specialized intellectual instruction.

A licensed teacher who teaches kindergarten or nursery school, disabled children or skilled and semi-skilled trades, meets the duties test of the professional exemption. You do not qualify for the professional exemption because you do not have a teaching credential
and are not licensed.

Show the head of your school this article and let her know that you should be paid overtime wages.