Daycare center instructors who spend a majority of their time teaching children between the ages of three and five, may not qualify for the teacher exemption under the Fair Labor Standards Act, says the U.S. Dept. of Labor Office of Enforcement Policy, in another recently released opinion letter.

“Unless the daycare center provides grade school curriculums, introductory programs in kindergarten, or nursery school programs in elementary education … as determined under state law, the instructors are not within the scope of the teacher exemption of the FLSA,” the opinion letter says. “[T]he daycare centers are not licensed by the State Department of Education, but instead are licensed by the Department of Public Welfare. This indicates that the state does not consider the day care centers to be providing educational services. Absent any information to the contrary, we conclude that the instructors do not qualify for the teacher exemption,” the letter concludes.

Under the Fair Labor Standards Act, white collar employees serving in an administrative exempt category must be paid on a salary basis of at least $455 per week, among other criteria. The exemption is lost if it is demonstrated that the employer does not intend to pay employees on a salary basis, such as having an actual practice of making improper deductions from the salary. According to the First Circuit, a company who failed to pay a customer service manager his full salary on two paychecks did not lose the exemption. “We conclude that two aberrant paychecks out of the approximately 50 that [the manager] received do not amount to an ‘actual practice’” of improper deductions, the Court rules. Cash v. Cycle Craft Co.