U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
FLSA2008-7
September 26, 2008
Dear Name*:
This is in response to your request for an opinion regarding whether substitute teachers
qualify for the professional exemption under section 13(a)(1) of the Fair Labor Standards
Act (FLSA) and regulations, 29 C.F.R. Part 541.
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It is our opinion that a substitute
teacher may qualify for the professional exemption if the duties test is met.
Your State does not require substitute teachers to have a college degree or teaching
certificate. Instead, they only need a substitute teaching permit issued by the State
Professional Teaching Standards Board. To qualify for the permit, a substitute teacher
must:
1. Complete at least 65 college semester hours or obtain an associate’s degree from a
regionally or nationally accredited institution; or
2. Obtain a high school diploma or G.E.D. certificate and complete 24 hours of in-
service training and ten hours of classroom observation.
You indicate that these substitute teachers’ primary responsibility is teaching the same
subjects as the everyday teacher for whom they substitute.
Substitute teachers must be evaluated on an individual basis to determine whether they
qualify for the teacher exemption under the applicable regulations,
29 C.F.R. § 541.303.
These regulations exempt from minimum wage and overtime pay “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.” Id. § 541.303(a).
Having a primary duty of teaching generally involves “by its very nature, exercising
discretion and judgment.” Wage and Hour Division
Fact Sheet #17D.
Substitute teachers qualify for the professional exemption if their primary duty is
teaching and imparting knowledge in an educational establishment. On the other hand,
substitute teachers whose primary duties are not related to teaching—for example,
performing general clerical or administrative tasks for the school unrelated to teaching
∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at www.wagehour.dol.gov.