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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Clergy Financial Resources serves as a resource for clients to help analyze the complexity of clergy tax law, church payroll & HR issues. Our professionals are committed to helping clients stay informed about tax news, developments and trends in various specialty areas.

This article is intended to provide readers with guidance in tax matters. The article does not constitute, and should not be treated as professional advice regarding the use of any particular tax technique. Every effort has been made to assure the accuracy of the information. Clergy Financial Resources and the author do not assume responsibility for any individual’s reliance upon the information provided in the article. Readers should independently verify all information before applying it to a particular fact situation, and should independently determine the impact of any particular tax planning technique. If you are seeking legal advice, you are encouraged to consult an attorney.

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