|Title||FLSA for Preschools|
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Daycare Centers and Preschools Under the Fair Labor Standards Act (FLSA)
Fact Sheet #46, November 2007, U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division
This fact sheet provides general information on how the FLSA applies to daycare centers and preschools.
Daycare centers and preschools provide custodial, educational, or developmental services to preschool age children to prepare them to enter elementary school grades. This includes nursery schools, kindergartens, head start programs, and any similar facility primarily engaged in the care and protection of preschool age children. Individuals who care for children in their home are not considered daycare centers unless they have employees to assist them with the care of the children.
The 1972 Amendments to the FLSA specifically extended FLSA coverage to preschools as covered "enterprises," regardless of whether public or private or operated for profit or not for profit, and without regard to the annual dollar volume of the business. As a result, all such enterprises are required to comply with applicable provisions of the FLSA.
The FLSA requires covered employers to:
Preschool Teachers: Bona fide teachers in preschool and kindergarten settings may qualify for exemption from the minimum wage and overtime pay requirements as "professionals" under the same conditions as a teacher in an elementary or secondary school. Teacher in an elementary or secondary school. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in this activity as a teacher in an educational establishment. It should be noted that, although a preschool may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs for the facility's children would not ordinarily meed the requirements for exception as teachers under the applicable regulations.
Rest and Meal Periods: Employers that authorize short breaks or rest periods must count them as hours worked. Rest period of short duration, usually 20 minutes or less, are common in industry (and promote employee efficiency) and are customarily paid for as working time. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time as long as work time as long as the employee is completely relieved from duty if required to perform any duties, whether active or inactive, while eating. Thus, an employee is not considered "relieved" if required to continue to watch over children while they and the employee eat their meal.
Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs, and similarly activities must be counted as working time unless all four of the following criteria are met: (1) it occurs outside normal scheduled hours of work; (2) it is completely voluntary; (3) it is not job-related (unless the employee attends an independent school or colleges on his/her own initiative outside work hours); and (4) no other work is performed during the period. The time spent attending training that is required by the state for day care center licensing is working time for which employees must be compensated.
Issues that the Wage and Hour Division's experience has shown to be problems in the industry include:
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) requires that FMLA-covered employers allow eligible employees to take up to a total of 12 workweeks of unpaid leave during any 12-month period for:
The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and to private sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. To be eligible for FMLA benefits, an employee must have worked for the employer for a total of 12 months,have worked at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website:
http://www/wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
U.S. Department of Labor
Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific applications of laws to particular facts requires the advice of an attorney.
Association of Christian Schools International
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