The Fair Labor Standards Act (FLSA) requires that overtime be paid at a rate of not less than one and one-half times an employee’s regular rate of pay for each hour that an employee works in excess of 40 hours in a single workweek. It may begin on any day of the week and at any hour of the day. Contrary to popular belief, comp time does not exist as an alternative to paying overtime. Time off cannot be banked or accrued beyond the workweek in which the worker works overtime. It is permissible however, to offer “time off” in lieu of the overtime pay if the time-off is used within the same workweek. Generally, employers who offer this “time off” administer it on an hour-for-hour basis. There exist certain exemptions from the minimum wage and overtime requirements. The most used are the executive, administrative and professional exemptions. These are often called the “white collar exemptions.” To be exempt, employees must be paid on a salary basis, paid at the required salary level of at least $913 per week (the equivalent of $47,476 per year). To be paid on a salary basis means that the employee’s compensation is not subject to reduction based on the quality or quantity of work. In addition to meeting the salary test and being paid on a salary basis, the employee is exempt only if he or she meets a “duties test.” The “duties test” varies depending upon the particular exemption. An employee whose duty requires advance knowledge beyond high school level and is customarily acquired by a prolonged course of specialized intellectual instruction may meet the duty requirement for the learned or creative professional. An employee whose primary duty is to manage or direct operations and supervises at least 2 full-time employees or their equivalent (one full-time and two half-time employees) may qualify under the executive exemption. An employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations which included the exercise of discretion and independent judgment with respect to matters of significance may qualify under the administrative exemption.
Whether or not an individual qualifies under an exemption is not decided based on one’s job title but rather on the employee’s actual job duties. Go to the website of the Department of Labor at dol.gov for more information. Pastors, DCEs, DCOs (including interns), and vicars who meet the required salary and duties tests are not subject to overtime pay or would likely be exempt on other grounds. Doctors, lawyers and teachers are generally exempt regardless of their pay because minimum salary requirements do not apply to them. However, to be exempt, a teacher’s primary duty must be teaching, tutoring, instructing or lecturing in an educational institution. Preschool teachers whose primary duty is to care for the physical needs of children ordinarily would not met the teacher exemption. The ministerial exception may provide another avenue to assert that the FLSA does not apply to certain positions. Ordained ministers and most (if not all) commissioned ministers should fall within the ministerial exception. Potentially other positions, such as teachers or music directors, may also be subject to the ministerial exception. Each position and its particular duties must be reviewed before assuming the ministerial exception applies. Legal counsel should be sought to determine whether or not the ministerial exemption is applicable. Any uncertainty about an individual’s employment status (exempt or non-exempt) should be resolved with the assistance of legal counsel. Finally, be aware that some states may have stricter standards with respect to these rules. Where federal and state law differs, the higher standard applies. If in doubt, contact your congregation’s district office for more information or your own state’s department of labor office.