The Department of Labor (“DOL”), in its opinion letter FLSA2021-2, recently concluded that private religious school teachers may be exempt from the wage and hour requirements of the Fair Labor Standards Act (“FLSA”) if such teachers qualify as “ministers.”
Last summer, in Our Lady of Guadalupe School v. Morrisey-Berru, the U.S. Supreme Court expanded the “ministerial exception” to the federal employment discrimination laws to include employees of a religious organization who are not ordained but whose roles include “conveying” the message of a religious organization and “carrying out its mission.” The Court held that religious school teachers who are not ordained may qualify as “ministers” for the purposes of the ministerial exception if their duties and responsibilities include educating young people in the faith and training them to live in accordance with the faith. In short, the federal employment discrimination laws would not apply to the religious school’s employment or termination of such teachers.
Relying on the same analysis used in Our Lady of Guadalupe, the DOL concluded that private religious school teachers may qualify for the ministerial exception and would thus be exempt from the FLSA’s wage and hour requirements. Such teachers would qualify if the facts show that their roles include “conveying” the message of a religious organization and “carrying out its mission.” Religious schools that employ such teachers could pay them on a salary basis and would not have to pay them minimum wage or overtime wages.
As a practical matter, the US DOL’s opinion may not affect most religious school teachers because most, if not all, are already exempt from the FLSA as “employees employed in bona fide professional capacity.” FLSA, Section 13(a)(1). The regulations to the FLSA define “bona fide professional” to include any employee whose primary duty is teaching and who is employed by an educational establishment to teach. The list of exempt teachers includes, but is not limited to, nursery, kindergarten, elementary and high school teachers.