AN OVERVIEW OF
THE FMLA AND THE FLSA
FOR SCHOOL DISTRICTS
David T. Zafiratos
Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.
The Fair Labor Standards Act
29 U.S.C. § 201, et seq.
The Fair Labor Standards Act
•
•
•
Generally: The Fair Labor Standards Act (“FLSA”) is the
most general federal labor law.
Provisions: The FLSA contains provisions governing
minimum wage, overtime pay, record keeping, and child
labor.
Hallmarks:


Federal Minimum Wage: $7.25/hour
Overtime: Employees receive 1.5 times their wage for every
hour worked past forty hours in a week.
FLSA Preemption

The FLSA is a regulatory floor, not a ceiling. The
states can enact stricter protections than those
provided by the FLSA. See Barefield v. Village of
Winnetka, 81 F.3d 704, 711 (7th Cir. 1996).
For Example: The Illinois Minimum
Wage Law (820 ILCS 105/)

Minimum Wage:


Overtime:


$8.25
Employees receive 1.5 times their wage for every hour
worked past forty hours in a week.
Other Provisions:
Payroll Recordkeeping Requirements
 Notice Requirements
 Enforcement and Penalties
 Civil Actions

Exempt v. Non-Exempt Employees


Non-Exempt Employees: Those who are subject to
the FLSA’s overtime provisions.
Exempt Employees: Those who are not subject to
the FLSA’s overtime provisions.
Exempt Employees: Three
Requirements


(1) Must be paid at least $455 per week ($910
biweekly / $1,971.66 monthly / $23,660
annually);
(2) Must be paid on a salary basis;
 Defined
as a predetermined amount constituting all or
part of an employee’s compensation, which is not
subject to reduction because of variations in the quality
or quantity of work performed.

(3) Must perform exempt duties.
“Exempt Duties”

Key Question: What does the person do?
 Not:

What is the person’s title?
Three Categories of Exempt Duties:
 Executive
 Professional
 Administrative
Executive Duties


Primary Duty: To manage the enterprise, department, or
subdivision.
“Management” Includes:









Interviewing, selecting, training, and disciplining employees;
Setting and adjusting pay and work hours;
Directing the work of employees;
Appraising employees’ productivity and efficiency for the
purpose of recommending promotions or other changes in status;
Handling employee complaints/grievances;
Disciplining employees;
Planning the work;
Planning and controlling the budget; and
Monitoring or implementing legal compliance measures.
Executive Duties (cont’d)

Employees with bona fide executive duties:
 Must
regularly direct the work of at least two full-time
employees.
 Must have genuine input into employment decisions of
other employees.
 Must customarily and regularly exercise discretionary
power.
 Must not devote more than 20% of one’s work hours to
activities not directly related to the performance of
“management.”
Professional Duties

Primary Duty: Perform work that requires advanced
knowledge.
Typically requires specialized education (usually beyond
college).
 Requires work that is predominantly intellectual in character
(more academic than skilled trades).
 Requires the consistent exercise of discretion and judgment.


Important Note:

Professional employees must not devote more than 20% of
one’s hours of work to activities not directly related to the
performance of this specialized work
Administrative Duties

Two Requirements:
(1) Perform office or non-manual work directly related to
the management or general business operations of the
employer.
 (2) Must include exercise of discretion and independent
judgment with respect to matters of significance; employees
have authority to make independent choice, free from
immediate direction or supervision.


Important Note:

Administrative employees must not devote more than 20%
of one’s hours of work to activities not directly related to the
performance of this specialized work
Administrative Duties (cont’d)

Employees Performing Administrative Duties
Include:
 Those
who regularly assist an executive/administrator;
 Those who perform under generally supervision in a
field requiring specialized training, experience, or
knowledge; and
 Those who perform specialized assignments under
general supervision.
Most Teachers Are Exempt Employees

Most teachers are exempt employees, thanks to an
explicit statutory exception (29 U.S.C. § 213(a)(1)).
 Teachers
that are always exempt employees:
 General
Ed Teachers
 Special Ed Teachers
 Substitutes whose primary duty is teaching
 Extracurricular ‘Teachers’: Athletic Coaches, Club Sponsors
 Preschool
exempt
teachers are sometimes, but not always,
Exempt Employees: Salary
Requirements

General Rules:
 Exempt
employees must receive their full salary for a
week in which they perform any work—regardless of
the number of days or hours actually worked;
 No pay is required for an entire workweek where the
employee performs no work; and
 No deductions can be made if the employee is ready,
willing, and able to work, but the employer has no work
for the employee to perform
Exempt Employees: Salary
Requirements (cont’d)

Effect of Absences: Exempt employees must receive
their full salary for a week in which they perform
any work, unless they are absent for one or more
days due to:
 Personal
reasons (other than sickness or accident), or
 Sickness or disability and reduction in pay is due to a
bona fide plan, policy, or practice that provides
compensation for loss of salary (e.g., disability policy
or workers’ compensation).
Exempt Employees: Salary
Requirements (cont’d)

Other Exceptions: Exempt employees must receive
their full salary for a week in which they perform
any work, unless they are absent:
 Due
to penalty for violating major safety rules;
 Due to intermittent FMLA leave.

First and Last Weeks: Proportionate parts of an
employee’s full salary can be paid for time actually
worked in the first and last weeks of employment
Exempt Employees: Salary
Requirements (cont’d)

Prohibited Deductions:
 Employers
cannot reduce an exempt employees salary
for absence due to:
 Jury
duty;
 Testifying as a witness; or
 Temporary military leave.
 However,
if an employee is compensated for these
activities, employers may offset the employee’s salary
by the amount received.
Exempt Employees: Salary
Requirements (cont’d)

Effect of Disciplinary Suspension: Employees must
receive their salary for a week in which they
perform any work, unless they are absent due to a
disciplinary suspension of one or more full days
imposed pursuant to a written policy applicable to
all employees for violating workplace conduct rules.
 Conservative
Approach: Do not allow suspensions to
occur for less than one work week at a time for any
exempt employee except teachers. As always, check
your Board policy and consult with your attorney!
Non-Exempt Employees

Non-Exempt Employees are subject to the FLSA’s
(and Illinois’) minimum wage and overtime provisions
 Federal
minimum wage: $7.25
 State minimum wage: $8.25
 Overtime: 1.5 times the employee’s wage for every
hour worked past forty hours in a workweek.
“Work Week” Defined

Formal Definition: A fixed and regularly occurring
168 hour period in seven consecutive days.
 May
begin on any day, at any hour
 May be different for different employees or employee
groups
Meal Breaks


Generally: Teachers who work more than four hours per
day must receive a duty-free lunch equal to the regular
local school lunch period and not less than thirty
minutes. (105 ILCS 5/24-9)
Effect of the One Day Rest in Seven Act (820 ILCS
140/3): Requires employees working 7.5 continuous
hours to take a meal break at least twenty minutes
long. This lunch break must begin before the fifth hour
of their shift.

Does not apply to employees whose meal period is
governed by a collective bargaining agreement.
Rest Breaks



Illinois does not have a law regarding rest breaks
other than meal breaks.
The FLSA does not require employers to provide
rest breaks.
If an employer does choose to grant rest breaks,
then they must be paid.
Meal & Rest Breaks: Frequently Asked
Questions

Can a non-exempt employee skip their two
breaks in an eight hour period and leave thirty
minutes early?
 Yes.
However, because break time is paid working
time, employees should only be paid 7.5 hours.
Meal & Rest Breaks: Frequently Asked
Questions

Can a non-exempt employee skip their meal
break and leave thirty minutes early?
 No.
Meal time is mandatory if the employee is working
the requisite number of hours. Therefore, meals cannot
be skipped.
Meal & Rest Breaks: Frequently Asked
Questions

Can a non-exempt employee volunteer their time
and not get paid?
 Only
if their services are offered freely, without
coercion by the employer, and
 Only if the volunteer work is not the same type of
service that the individual provides in their employment.
Recordkeeping: Non-Exempt
Employees
•
Employers must keep the following information for non-exempt
employees to comply with the FLSA (29 CFR § 516.2):






Personal information (name,
employee number, home
address, gender, occupation,
etc.);
The day of week and time
when the workweek begins;
Regular pay rate;
Amount excluded from the
regular pay rate;
Hours worked each workday;
Total hours worked each
workweek;





Total daily, regular pay;
Total pay for overtime hours;
Total deductions from (or
additions to) base wages
each pay period;
Date of payment, as well as
the pay period covered and
total wages paid each
period;
Retroactive payments
required by the Wage and
Hour Division.
Record Keeping: Exempt Employees

Employers must keep the following information for
exempt employees (29 CFR § 516.3):
 Personal
information (name, employee number, home
address, gender, occupation, etc.)
 The day of week and time when the workweek begins;
 Regular hourly rate of pay or basis of pay;
 Date of payment, as well as the pay period covered
and total wages paid each period.
Record Keeping: Retention
Requirements

Employers must retain the following records for at
least three years (29 CFR § 516.5):
 Payroll
Records;
 Collective bargaining agreements;
 Individual employment contracts;
 Written memoranda summarizing the terms of payment;
and
 Notices.
Record Keeping: Recommendations

Require each non-exempt employee to use a time sheet,
time clock, or other time tracking method.



Time sheets should feature a statement that the employee
acknowledges they reviewed the time sheet and it
accurately reflects all time worked during that workweek.
Each employee should be required to submit a weekly
time sheet within a reasonable period of time.
Each employee should keep a copy of their weekly time
sheet.
FLSA Violations

Noncompliance can be costly!
 Federal
Claim: Damages may include actual unpaid
wages, as well as liquidated damages—an additional
amount equal to the actual unpaid wage.
 State Claim: Employees may also bring a state claim
and recover identical and additional damages as in
federal claims.
 Attorney’s Fees: Successful plaintiffs may be awarded
reasonable attorney’s fees as well.
The Family Medical Leave Act
29 U.S.C. 2601, et seq.
The Family Medical Leave Act

Generally: Under FMLA, eligible employees are
entitled to take unpaid, job-protected leave with
continuation of group health insurance for up to
twelve workweeks in a twelve-month period.
When Can An Employee Take FMLA
Leave?

Employees can take FMLA leave:
For birth and care of a newborn child;
 For the placement and care of a child for adoption or foster
care;
 To care for an immediate family member (spouses, children,
parents—but not in-laws) with a serious health condition;
 To take medical leave when the employee is unable to work
because of a serious health condition;
 For other qualifying exigencies arising out of the fact that
the employee’s spouse, son, daughter, or parent is on
covered active duty or call to covered active duty status as
a member of the Armed Forces.

FMLA: Covered Employers

The FMLA applies to:
 All
public agencies;
 Elementary schools;
 Secondary schools; and
 Private employers that employ fifty or more employees
for at least twenty workweeks in the current or
preceding calendar year.
Special Provisions for Members of the
Military


Family/Military Member Deployment: Eligible
employees may take FMLA leave for specified
reasons related to certain military deployments of
their family members.
Additional FMLA Leave: Certain employees may
also take up to twenty-six weeks of FMLA in a
single twelve-month period to care for a covered
member of the armed services or veterans with a
serious injury or illness.
FMLA-Eligible Employees


Only eligible employees can take FMLA leave.
Employees are eligible when they:
Work for a covered employer;
 Have worked 1,250 hours during the last twelve-months
prior to the start of leave;


Does not include vacation, sick time, or paid time off.
Work at a location where the employer has fifty or more
employees with seventy-five miles; and
 Have worked for the employer for twelve months before
their leave begins.


These twelve months need not be consecutive
Common Serious Health Conditions




Conditions requiring an overnight stay in a hospital or
other medical care facility;
Conditions that incapacitate an employee or their
family members for more than three consecutive days
and have ongoing medical treatment;
Chronic conditions that cause occasional periods of
incapacity for employees or their family members; and
Pregnancy (including prenatal medical appointments,
incapacity due to morning sickness, and medically
required bed rest).
Certification of Serious Health
Conditions

Certification: Employers can require certification of
a serious health condition by a health care provider.
 Employers
must allow the employee at least fifteen
calendar days to obtain such a certification.

Second Opinions: Employers can require second or
third medical opinions at their own expense if they
have reason to doubt the validity of the first
medical certification.
Certification of Serious Health
Conditions (cont’d)

Deadline for Certification Requests:
 If
leave is foreseeable, employers have five business
days after the notice for FMLA leave has been given to
request certification.
 If leave is unforeseeable, employers have five business
days after the leave begins to request certification.
Effect of Paid Vacation Time and Sick
Days


FMLA only requires unpaid leave.
Employers may require employees to use accrued
paid vacation days or paid sick time for some or all
of the FMLA leave period.
 Additionally,
employees may elect to use this time on
their own volition.
Intermittent FMLA Leave



Intermittent Leave: Employees can take FMLA leave
intermittently, or in separate blocks of time for a
single qualifying reason, if it is medically necessary.
Reduced Leave Schedules: Employees can attain a
“reduced leave schedule,” which reduces the
employee’s usual work requirement.
Caveat: Employees must make a reasonable effort
to schedule treatment such that it does not unduly
disrupt the employer’s operation
FMLA Leave: Newborn Children

Mothers and fathers have the right to take FMLA leave
to bond with a newborn child.
Mothers can take FMLA leave for prenatal care, incapacity
due to pregnancy, and for serious health conditions
following the birth of a child.
 Fathers can use FMLA leave to care for his spouse who is
incapacitated due to pregnancy or child birth.


New parents can also take intermittent FMLA leave, so
long as the employer approves and the leave concludes
within twelve months after the child’s birth.

This also applies to newly placed adopted or foster children
How Do Employees Take FMLA Leave?


Advanced Notice for Foreseeable Leave:
Employees seeking to use FMLA leave are required
to provide thirty days advance notice of the need
to take FMLA leave, so long as the need for FMLA
leave is foreseeable and it is practicable to give
notice.
Unforeseeable Leave: If leave is unforeseeable, the
employee must provide notice as soon as
practicable.
 Usually
the same or next business day.
How Do Employees Take FMLA Leave
(cont’d)

Effect of Leave Notice Policies:
 Employees
must also comply with an employer’s routine
leave notice policies when taking FMLA leave.
 Employees are also required to follow routine call-in
procedures.
How Do Employees Take FMLA Leave?
(cont’d)

Response by Employer: Employers must notify an
employee of whether they are eligible for FMLA
leave within five days of a request.
 If
an employer decides an employee is not eligible, it
must state at least one reason why the employee is
ineligible.
FMLA Notice Requirements

Posted Notice: Every covered employer must, in a
conspicuous place, post a notice explaining the
FMLA’s provisions and providing information for
reporting violations.
 Employers
must also include a general notice in
employee handbooks or distribute a copy of the notice
to each new employee
FMLA Notice Requirements (cont’d)

Notification of Eligibility: If an employer learns an
employee has requested FMLA leave or that the
employee plans to take leave for a qualifying
purpose, then the employer must notify the
employee of their eligibility to take FMLA leave.
 Employers
must notify the employee of their rights and
responsibilities under FMLA
Special Provisions for School
Employees

There are several special exceptions for employees
of schools that govern:
 Intermittent
or reduced leave, and
 Leave taken near the end of an academic term.
School Employees: Intermittent or
Reduced Leave
If a leave period ends with the school year and
begins with the next year, it is considered consecutive
and not intermittent—the summer vacation time does
not count.
 Special provision, only apples to “instructional”
employees

 Defined
as those whose principal function is to teach
and instruct students in class
School Employees: Intermittent or
Reduced Leave (cont’d)
•
If a leave period ends with the school year and begins
with the next year, it is considered consecutive and not
intermittent—the summer vacation time does not count.
School Employees: Intermittent or
Reduced Leave (cont’d)

If foreseeable leave to care for a family member
with a serious health condition receiving planned
treatment causes an instructional employee to miss
more than 20% of the total number of working
days over the leave period, the employer may
require the employee to either:
 Take
leave for a period of a particular duration (not
greater than the time of planned treatment); or
 Temporarily transfer the employee to an alternative,
equally-compensated position during the leave.
School Employees: Leave Taken Near
the End of an Academic Term

If an instructional employee’s leave begins more
than five weeks before the end of a term, the
employer may require the employee to stay on
leave through the end of the term if:
 Leave
will last at least three weeks; and
 The employee would return to work during the threeweek period before the end of the term.
School Employees: Leave Taken Near
the End of an Academic Term (cont’d)

If an employee begins leave during the five-week
period before the end of a term because of:
Birth, placement for adoption, or placement for foster care
of a child;
 A need to care for a spouse, son, daughter, or parent with a
serious health condition; or
 A need to care for a covered servicemember.


Then the employer may require the employee to stay on
leave through the end of the term, provided that:
The leave will last more than two weeks; and
 The employee would return to work during the two-week period
before the end of the term.

School Employees: Leave Taken Near
the End of an Academic Term (cont’d)

If an employee begins leave during the three-week
period before the end of a term because of:
 Birth,
placement for adoption, or placement for foster
care of a child;
 A need to care for a spouse, son, daughter, or parent
with a serious health condition; or
 A need to care for a covered servicemember.

Then the employer may require the employee to
stay on leave through the end of the term if the
leave will last more than five working days.
School Employees: Leave Taken Near
the End of an Academic Term (cont’d)

Note: When an employee is required to extend
leave through the end of the term, only the amount
of time up until the employee is ready and able to
return to work will count against the employee’s
FMLA leave entitlement.
Contact Information
David T. Zafiratos
Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.
9990 West 190th Street, Suite A
Mokena, Illinois 60448
(708) 478-4600
dzafiratos@ottosenbritz.com