The Department of Labor, which enforces the ELSA, does not consider preschool and day care workers to be “teachers” under the provisions of the FLSA. The Department takes this position even if the pre-school program incorporates educational activities designed to prepare young children for kindergarten. Given these facts, here are some general principles relating to pre-school and day care workers.
Employees in pre-schools and child care facilities who primarily provide “custodial care” for children are not exempt from the FLSA. In particular, the Department of Labor takes the position that these employees are providing “babysitting” care rather than educational instruction for children, and therefore, they are not exempt under the “professional employee” definition of the FLSA. Accordingly, schools should meet the minimum wage and overtime requirements for these workers.
Although some pre-school programs provide educational programs for young children, the Department takes the position that these programs fall within the provisions of the FLSA. For that reason, schools should meet the minimum wage and overtime requirements for all preschool and child care workers, even if these workers are providing educational activities for the young children in their care.
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