Gov. Linda Lingle‘s request that teachers work for free on the final three furlough days of this year sparked an outcry.
An investigation by Civil Beat, prompted by questions from users of the news service, has determined that her proposal, although not necessarily practical, was legal. And the union’s argument against the proposal was misplaced.
Hawaii’s public school teachers would not be breaking any federal labor laws by volunteering on furlough days, said Deanne Amaden, a spokesperson for the U.S. Department of Labor in San Francisco.
“Unlike for other exempt professionals, there is no salary requirement for teachers under federal labor laws,” said Amaden.
The story started last week when Lingle floated a proposal for teachers and principals to volunteer on the school year’s (then three) remaining Furlough Fridays as “a gesture to heal our community.”
Hawaii State Board of Education Chairman Garrett Toguchi questioned Lingle’s understanding of how schools are run, pointing out the logistical nightmare it might become if some employees decided to voluntarily return while others chose not to. He was also concerned about support workers, who he knew couldn’t legally volunteer.
In fact, both state and federal laws permit public school teachers to perform their duties without pay if they choose.
A state law allows individuals to volunteer for the public welfare, pointed out Linda Smith, the governor’s senior policy adviser in a written response to Okabe, published in newspapers statewide. She characterized the board chairman and union leaders as “not willing” to help Hawaii’s keiki return to school. There’s no contention about this issue.
However, at first it appeared teachers were subject to the federal Fair Labor Standards Act, said Michael Nauyokas, a Honolulu labor attorney. The act was instituted in 1938 to protect employees from unreasonably long hours and low wages. Among other things, it established the nation’s overtime, minimum wage and hour laws for employees in the private, federal, state and local sectors. But an exemption from the act’s wage and hour provisions for professional employees applies also to classroom teachers.
The Labor Department’s Amaden pointed to this excerpt from a fact sheet on the issue: “Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers (emphasis added). Having a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge includes, by its very nature, exercising discretion and judgment.”
For most other school employees, even if they volunteer to perform their duties, “the hours are work time and are compensable,” states the Labor Department in a fact sheet explaining compensable time under the act. “Work not requested, but suffered or permitted to be performed is work time that must be paid for by the employer.”
“Federal wage and hour laws (which we are not exempt from) would not allow a nonexempt worker (like a custodian) to waive his/her right to get paid for work,” said Toguchi in an interview with Civil Beat after Lingle announced her proposal. “So, by asking people to volunteer she’s also opening up the state to wage and hour (back wages) violations, not to mention the safety issues.”
The governor’s adviser, Smith, in her letter about the federal labor laws, acknowledged that they apply to “some hourly public workers,” but said that “the Department of Education could easily identify these individuals and process appropriate compensation for the additional hours they give back to allow children to return to the classroom.”
When Lingle initially asked education employees to return to work without compensation, though, she made no mention of payment for those covered under the federal act. In fact, one of her early proposals to end furloughs excluded the cost of returning those “non-essential” workers to school.