Daycare Centers and Preschools Must Pay Overtime Under the Fair Labor Standards Act (FLSA)

General Characteristics of 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.

 Coverage 

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.

 Five Requirements of FLSA Coverage

Daycare center and preschool employers are required to:

  1. Establish the workweek for pay purposes (7 consecutive 24-hour periods), which may begin on any day of the week in the employer’s discretion (but remains fixed once established).
  1. Maintain complete and accurate records of each employee’s daily and weekly hours worked each week.
  1. Pay at least the federal minimum wage to all nonexempt employees.
  1. Pay at least one-and-one-half times each employee’s regular rate of pay as overtime compensation to each nonexempt employee for all hours worked over 40 in each workweek.
  1. Comply with all youth employment standards, such as restrictions on working hours, operating certain equipment, or performing work in certain occupations for minors under age 16 and, if under age 18, restrictions against performing certain hazardous occupations (which include driving a school bus, among others).

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. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in this activity as a teacher in educational establishment. It should be noted that, although a preschools may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs for the facility’s children would ordinarily not meet 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 periods 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 the employee is completely relieved from duty for the entire meal period for the purpose of eating a regular meal. The employee is not 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 similar 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 college 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.

 Five Typical Problems of Daycare Centers and Preschools

  1. not recording all hours of work, for instance, taking someone off the clock for lunch even though the person is required to remain with children and supervise them, attending parent staff meetings, running errands for the employer such as going to the grocery store, etc.;
  1. employees reporting early or staying late who are paid a flat fee for this extra time, instead of paying proper overtime (time-and-one-half the regular rate of pay) for such extra hours;
  1. taking improper deductions from employees’ pay, such as for items that primarily benefit the employer, which causes them to be paid less than minimum wage or which cuts into the overtime due the employee;
  1. classifying employees, who do not meet all the tests for exemption, as exempt teachers and not paying such non-exempt staff appropriate overtime compensation; and
  1. paying overtime compensation after 80 hours in two weeks instead of the required overtime payment after 40 hours in each week.

 If you feel that you have not been compensated for all the hours you have worked at a preschool or daycare center you may call the law office for a FREE  consultation about your claim for minimum wage or unpaid overtime wage violations at: (954) 948-8130. Or you can complete the simple form below for submission to us.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with the law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We look forward to discussing your possible minimum wage and/or overtime pay violations claim.  We are passionate about defending and enforcing workers’ rights for unpaid wages.