The U.S. Department of Labor has issued an opinion that provides additional guidance on whether assistant coaches are exempt or non-exempt for purposes of the Fair Labor Standards Act.

The recently issued opinion verifies cases in which assistant athletics instructors at institutions of higher education qualify as teachers who are exempt from the minimum wage and overtime pay requirements of the FLSA.

“According to the information you furnished,” the opinion says, “the assistant athletic instructors (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 percent 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.”

NCAA Associate General Counsel Scott Bearby said while the opinion is specific only to the institution or organization that made the request, it does provide additional guidance for other schools.

“It serves as a roadmap about how they can craft job descriptions and general responsibilities to match what was done under the advisory opinion,” Bearby said. “It gives some reassurance to institutions that treat their assistant coaches as exempt that they are on the right path. It would help for them to make their HR staffs aware of this development if they aren’t already to give further scrutiny to their own positions.”

The Department of Labor opinion noted that the assistant athletics instructor position it described included “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.”

Because those assistant athletics instructors spend more than 50 percent of their time on teaching activities, the DOL said they would qualify for exemption from the FLSA’s minimum wage and overtime pay requirements.

Modifications to the FLSA implemented in August 2004 caused significant changes to the criteria for determining which employees are required to be paid overtime. Among the changes, the minimum salary level for an employee to be considered exempt increased $300 per week  from $155 to $455 (or an increase in annual salary from $8,060 to $23,660) for all employee classifications. That meant, for example, that employees earning less than $23,660 would be non-exempt and thus subject to overtime pay regardless of their job descriptions, unless they fall within an exception, such as teaching.

The changes also included modifications in the exemptions available for employees who earn more than $23,660, which caused confusion among athletics department personnel as to how the new exemption regulations affect some head coaches, assistant coaches and graduate assistants.

While the NCAA partnered with the National Association of College and University Business Officers, the American Council on Education and the College and University Personnel Association to seek guidance from the Department of Labor, the new standards nonetheless prompted significant confusion among member institutions. Bearby said he had received more than 100 calls from members seeking clarification in the time between when the regulations went into effect in August 2004 and the 2005 NCAA Convention. Even now, Bearby said, a few institutional personnel ask about the FLSA.