Employment Law Questions? Ask an Employment Lawyer.
Thank you for the information and your question. The short answer to your question is no, a preschool teacher who makes a salary that is below the most recent exempt salary requirement set out by the U.S. DOL is not considered exempt under FLSA, and therefore must be paid overtime for any hours worked over 40 hours in a workweek. The longer answer is that there are two different qualifying requirements in order for an employee to be exempt from the overtime rules. One is based on duties, which is what the crux of Fact Sheet #46 is about,and the other is the minimum salary rule. They must fit under both definitions to be exempt.
That means that although someone might fight the first definition of a professional, administrative, etc., employee if they make below the newest minimum salary, they must be paid overtime and are therefore, considered non-exempt. Any order that comes after a preceding order, if there is a conflict, is determinative.
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To assist you further, this is a link to a DOL statement of the new rules and also a discussion of the "duties test" and "salary test" both of which must be met: https://www.dol.gov/whd/overtime/final2016/overtime-factsheet.htm
I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 11th . For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I have received neither.
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