By Marty Mayfield
KRTN Multi-Media
Dr. Neil Terhune, Raton Superintendent of Schools dropped what some employees described as a bombshell on hourly employees who also coach last Tuesday morning (2-11-14) when he told them that the district was in violation of Fair Labor Standards Act (FLSA) in regards to hourly employees who also coach.
Dr. Terhune informed those employees that the district could not pay hourly employees to coach sports because the time spent coaching would constitute overtime which would be paid at a rate of time and half. For example by paying the overtime to an assistant coach, that assistant coach could be making more money than the stipend paid to the head coach. Terhune felt that would be unfair and require paying the coach/teacher a bigger stipend. A coach that is also a teacher is paid a salary and is exempt from the overtime rules. Those coaches/teachers are given a stipend or nominal fee to perform those coaching duties.
Should the coach and assistant coach or coaches be hourly employees they would all have to be paid overtime which Terhune indicated the district doesn’t have the money to cover the overtime pay. What this means is that no hourly employees of the district can be coaches. At present this affects at least five district employees. However after the dust cleared Friday morning one of those employees turned in her resignation affective immediately.
In researching the FLSA, an opinion offered by Alfred B. Robinson Acting Director of the Wage and Hour Division of the Department of Labor answered this question “May a school secretary volunteer to be the head volleyball coach? Yes, the school secretary may volunteer to be the head volleyball coach under the FLSA. The O*NET descriptions of the duties performed by a school secretary and head volleyball coach are not closely related, and thus they would not constitute the same or similar services within the meaning of 29 CFR 553.103.”
As a volunteer that employee may be paid a stipend or nominal fee to perform those coaching duties but must meet these criteria as defined in the same opinion.
Section 3(e) (4) (A) of the FLSA and 29 CFR 553.101 and 553.103 [enclosure #1] indicate that individuals are volunteers, not employees of a public agency, when they meet the following criteria:
Perform hours of service for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation for the services rendered. The statute clarifies that a volunteer performing such service can either receive no compensation or be paid expenses, reasonable benefits or a nominal fee to perform such services;
Offer their services freely and without coercion, direct or implied, from the employer;
Are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer. In other words, individuals can qualify as volunteers if they either volunteer for different agencies or perform different services than they are employed to perform.
In small communities and school districts like many in the state and nationally there isn’t a large number of people clamoring to fill coaching positions. Those coaching positions are seasonal and many school districts probably don’t have the money to pay a full time coach just to coach nor would an individual be able to live off of a seasonal salary. How many employers would allow an employee time off to coach as well?
One solution offered by a former school board member suggested that the school district could contract with another agency to provide coaches. The district’s hourly employees then could coach under contract with that agency.
This issue has not been an audit finding in any of the school’s audits listed on the State Auditors web page. According to Dr. Terhune this has been a problem for many years through several different administrations. The FSLA was last updated in 1985 and all of the opinions that were found in researching this matter were after 2000. Since this issue deals with contracts and stipends that are paid for the contracts they should be something that would be looked at in an audit. If these contracts or stipends paid be in violation of a law would they not be an audit finding?
Each coach has a separate employment contract to cover his or her coaching duties separate from their duties as hourly school employees. If this had been an issue for so long as Dr. Terhune indicates, then why wasn’t it uncovered when the attorneys researched and wrote the contracts for these coaches? Some of these coaches have been coaching for several years and through several administrations.
The Raton School board has called a special meeting for Tuesday evening at 5:30 to discuss the matter. They will go into executive session to discuss the matter with the school’s attorney John Kennedy with Cuddy and McCarthy LLP in Albuquerque and Santa Fe. Once that is completed the board will return to open meeting for public discussion. After that the board may return to executive session to discuss limited personal matters and possible litigation against the district.
These web pages were used in researching this article
http://www.dol.gov/whd/opinion/FLSA/2005/2005_11_10_51_FLSA.htm
http://www.dol.gov/whd/opinion/FLSA/2004/2004_07_14_6_FLSA_Coaching.htm
http://www.dol.gov/whd/opinion/FLSA/2004/2004_10_01_12_FLSA_NonExemptSchoolEmployees.htm
Sounds like a can of beans just got opened… most of our “hourly workers” are coaches for the love of the game and to help supplement their barely minimum wage. Go Fight Tigers!!!