FLSA2008-11 — Assistant Athletic Instructors and the teacher exemption under section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-11

December 1, 2008

Dear Name*:

This is in response to your request for an opinion on whether certain Assistant Athletic
Instructors (AAIs) at institutions of higher education qualify as teachers who are exempt
from the minimum wage and overtime pay requirements of the Fair Labor Standards Act
(FLSA). We believe the AAIs you describe qualify for exemption as teachers under
section 13(a)(1) of the FLSA and
29 C.F.R. § 541.303.
1

According to the information you furnished, the AAIs teach proper skills and skill
development to student-athletes and are required to have a bachelor’s degree with a
master’s degree (or additional experience) preferred. You indicated that their teaching
responsibilities encompass at least 50% or more of their time and include instruction of
physical health, team concepts, and safety. The AAIs, who work under the supervision of
a head coach, are responsible for designing instructions for individual student-athletes
and for specific team needs, and thus have a great deal of independent discretion and
judgment as to the manner and method of teaching. Students receive academic credit for
their participation in collegiate team sports.

Section 13(a)(1) of the FLSA exempts from the Act’s minimum wage and overtime pay
requirements any employee employed in a bona fide executive, administrative, or
professional capacity. The term “employee employed in a bona fide professional
capacity” also includes “any employee with a primary duty of teaching, tutoring,
instructing or lecturing in the activity of imparting knowledge and who is employed and
engaged in this activity as a teacher in an educational establishment by which the
employee is employed.” 29 C.F.R. § 541.303(a).

There is no minimum education or academic degree required under the regulations for the
teacher exemption. See Wage and Hour Opinion Letter
FLSA2006-41 (Oct. 26, 2006);
Wage and Hour Opinion Letter
FLSA2005-39 (Oct. 13, 2005). Athletic instructors
whose primary duty is teaching in an educational establishment would qualify for the
exemption whether or not they have a particular academic degree. By contrast, athletic
instructors whose primary duty is not related to teaching would not qualify for the teacher
exemption. Also, the regulations do not require that exempt teachers be paid on a salary
basis. See 29 C.F.R. § 541.303(d). Having a primary duty of teaching generally

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

2
involves, “by its very nature, exercising discretion and judgment.” Wage and Hour
Division
Fact Sheet #17D.

The AAI position description you sent us includes a number of duties that are not related
to teaching, such as developing effective recruitment strategies, recruiting and following
up on prospective students, researching and targeting high schools and athletic camps as
sources for potential student-athletes, and visiting high schools and athletic camps to
conduct student interviews. As mentioned above, however, you stated that these AAIs
spend more than 50% of their time on teaching activities. This proportion is significant
because “employees who spend more than 50% of their time performing exempt work
will generally satisfy the primary duty requirement.”
29 C.F.R. § 541.700(b).

Although not fully described in your letter, we believe the institutions of higher education
you inquired about are colleges that would qualify as educational establishments for
purposes of the teacher exemption. An “educational establishment” is defined as “an
elementary or secondary school system, an institution of higher learning or other
educational institution.”
29 C.F.R. 541.204(b). Accordingly, based on your
representation that the AAIs spend more than 50% of their time teaching in an
educational establishment, we believe that they would qualify for exemption from the
FLSA’s minimum wage and overtime pay requirements.

This opinion is based exclusively on the facts and circumstances described in your
request and is given on the basis of your representation, explicit or implied, that you have
provided a full and fair description of all the facts and circumstances which would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your request might require a different conclusion
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issue addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).