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School is Back in Session: Resident Assistants Are Not Employees for the Fair Labor and Standards Act

Published:  August 21, 2014

It is imperative for employers to accurately classify their workers to ensure their policies do not run afoul of the Fair Labor Standards Act (FLSA).  Institutions of higher education are no exception.  The United States Department of Labor (DOL) released guidance, seen here, about how to classify Resident Assistants (RAs) and Resident Directors (RDs) under FLSA.

The Department of Labor Field Operations Handbook explained the difference between student employees and students who are not considered employees under FLSA:

(a) University or college students who participate in activities generally recognized as extracurricular are generally not considered to be employees within the meaning of the Act…[S]tudents serving as residence hall assistants or dormitory counselors, who are participants in a bona fide educational program, and who receive remuneration in the form of reduced room or board charges, free use of telephones, tuition credits, and the like, are not employees under the Act.

(b) On the other hand, an employment relationship will generally exist with regard to students whose duties are not part of an overall educational program and who receive some compensation. Thus, for example, students who work at food service counters or sell programs or usher at athletic events, or who wait on tables or wash dishes in dormitories in anticipation of some compensation (money, meals, etc.) are generally considered employees under the Act. (Chapter 10b24)

This handbook indicates that generally Resident Assistants, as long as they are in school and are receiving compensation in the form of reduced room and board charges or similar methods, are not employees under the FLSA.  On the other hand, Resident Directors generally are employees, if they are paid and do not teach, as their duties are not part of an overall education plan.  While this determination has recently been challenged, it has not yet been overturned.

Although Resident Directors are considered employees, the college or university’s inquiry should not stop there.  The next determination to consider is whether they are exempt from overtime under the FLSA.  In order to be an exempt employee under the FLSA, the Resident Director must be paid at least $455 per week and have primary responsibilities which include exercising discretion and judgment over significant matters including quality control, health, safety, finance, and managing policies, among other things.

As Resident Assistant and Resident Director classifications continue to make their way through the courts, colleges and universities should be aware that classification standards may soon change.

If you have any questions regarding employee classification under the FLSA, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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