Salary and compensation

What laws govern your pay?

Two separate bodies of statutory law govern the compensation of a school district staff: the Texas Education Code and the Fair Labor Standards Act.
The Texas Education Code establishes the minimum salary all districts must pay to classroom teachers, full-time librarians, full-time nurses and full-time counselors certified by the State Board for Educator Certification. Although many districts pay above the “state base” established by the education code, none can pay below it. At certain times and as recently as 2011 the education code has prohibited all districts from lowering the compensation of their staffs returning from the previous year. However, these statutory provisions have been repealed by subsequent Legislatures, though, as described below, districts are still limited in when and how they can reduce contract staff compensation. In the Education Code itself, all that remains today is the minimum salary scale, based on years of creditable experience and the career ladder for those who participated.
The Fair Labor Standards Act or FLSA is a federal statute. It and the regulations that interpret it are responsible for the minimum wage and the requirement for overtime pay. The FLSA does not apply to all district staff. The FLSA itself exempts those meeting its definition of “professional, executive and administrative” employees from the act. This is the reason for the terms “exempt” and “nonexempt”; they reference whether an employee is exempt or not exempt from the FLSA and, as such, whether an employee is legally entitled to overtime.   Whether an employee has a contract or not does not matter—what matters are the employee’s duties and whether they fit the detailed definitions of one of the three exempt categories. It also does not matter whether the employee is normally paid hourly or paid a regular weekly or monthly salary. In public education, teachers and administrators are almost always going to be exempt from the FLSA. Paraprofessionals and auxiliary staff, such as custodians and cafeteria workers, will usually be nonexempt. 

As with many things, the most important thing affecting whether and when a district can change a district employee’s salary is whether she has a contract. Where there is no contract, the district is free to increase salary or decrease salary at any time. Although it is common for raises to be announced at the beginning of the school year, the timing is due to the practicalities of the district budget process, not any legal requirement. Similarly, while it is uncommon for a district, like any employer, to reduce compensation because of the obvious impact on morale, there is actually no legal prohibition on a salary reduction. Where there is no contract, the only legal requirements regarding compensation are those found in the FLSA, for those not exempt from the FLSA.
A contract, however, limits the district’s ability to both raise and lower salary, except at certain times. It is not well-known that a contract limits a district’s ability to give a raise, but a little-known provision in the Texas Constitution prohibits a governmental entity, including a school district, from increasing the amount paid under a contract once performance of that contract has begun. Doing so is termed a prohibited “gift of public funds.” Although the purpose of the constitutional prohibition is to stop contractors from underbidding rivals on state contracts and then demanding more money once they have begun the work, the law also applies to contracts between school districts and educators.
  • For educators, this means that a district cannot grant a raise once the school year has started, unless the educator is doing something different, such as taking on new responsibilities. So, a district must usually establish a salary schedule before the start of the school year and stick with that salary schedule until the next school year. Again, this rule applies to an educator who remains doing the same thing. The constitution does not prohibit a raise tied to a promotion or acceptance of additional duties or responsibilities.
  • A district is even more restricted in when it can lower a contract educator’s compensation. Generally, a district cannot lower an educator’s salary unless the educator has received clear and specific notice of the reduction at least 45 calendar days before the first instructional day of the school year that the reduction will take place. For several decades, the commissioner of education has consistently applied this rule to contract educator compensation. The rule is based on the legal principle that an educator must know the important terms of their employment, such as what they will be paid, when they still have the legal right to “say no.”
The Texas Education Code sets a deadline of 45 calendar days before the first instructional day of the upcoming school year for when an educator can unilaterally resign without the district’s agreement. So, the commissioner has consistently held that the educator must know what they will make prior to this deadline, and if not specifically told otherwise, the educator must be paid at least as much as he was paid in total compensation for the previous year. The commissioner has ruled that it does not matter that the district can reassign and has reassigned the educator to a lower-paying position. Unless he receives notice before the deadline, his compensation cannot be reduced.
Although the commissioner has consistently held that compensation cannot be reduced, there are some specific circumstances where he has not yet ruled—for example, a situation where the salary reduction was related to something outside of the contract, such as a coaching duty that is not itself covered by a contract. So, exceptions to this general rule may, in the future, still arise.
Everyone has heard of “overtime,” but not everyone is clear regarding what the law requires. The FLSA creates the requirement that the employer pay overtime, and the act, along with the federal regulations that interpret it, determine when and to whom overtime must be paid.
As noted above, the FLSA does not apply to all educators; professional, executive and administrative employees (as defined in the law) are exempt from the act. This means that teachers and administrators are likely not going to be legally entitled to overtime while paraprofessionals and non-managerial office, custodial and cafeteria staff are. Again, whether an employee has a contract does not matter, nor does it matter whether the employee is normally paid hourly or paid a regular weekly or monthly salary. If the employee is nonexempt, the employee is eligible for overtime.
Overtime is defined as working more than 40 hours in one workweek. An employee may work beyond his usual hours on a given day and still not be eligible for overtime if he works no more than 40 hours over the course of the week. Only time actually worked counts toward overtime. An employee may be paid for a holiday or sick leave, but those actually unworked hours do not count in determining whether the employee has worked 40 hours.  
The FLSA also determines what overtime pay is: 1.5 times the normal hourly rate for any time worked in excess of 40 hours or, using the common phrase: “time and a half.” If the nonexempt employee is paid a weekly or monthly salary but works overtime, the employer must “do the math” to determine an hourly rate in order to work out what must be paid in overtime. If an employee works more than one job for a district, such as being both a teacher’s aide and a bus driver, the district must add the hours spent in both positions to determine whether he has worked more than 40 hours. If the two jobs are paid at different rates, the district must again “do the math” to determine the overtime rate. As required by federal regulations, this is a blending of the two rates, proportional to the amount of time spent doing either.
Because of the increase in compensation, most districts require prior approval before an employee works overtime. Although employees should know that a district is required to actually pay any overtime earned, even if required approval was not received, the district can discipline an employee for violating the policy—so the check with the overtime pay might be the last check the employee receives.
Districts are also prohibited from requiring or even allowing nonexempt workers to work “off the clock.” If a supervisor knows or should have known that work is being done, it must be counted as work hours. 
Compensatory time, or “comp time,” is time off to make up for extra time worked. Comp time can be informal (a supervisor simply giving some time off to make up for hard work) or formal (an alternative to paying overtime under the FLSA).
The FLSA provides that certain employers, including public school districts, can, by prior agreement with an employee, “compensate” those employees who are eligible for and who have earned overtime with compensatory time in lieu of monetary overtime compensation. Federal regulations hold that an employer’s policy providing for comp time and an employee’s agreement to work for the employer can constitute such a prior agreement.
Each school district that has decided to provide comp time in lieu of overtime must have a policy as to how its nonexempt workers can request and use comp time in lieu of overtime. The policy may allow the administration to choose whether a particular employee will receive either overtime or comp time for a particular situation. The policy may also allow the administration to direct an employee to take comp time at a particular time, even if the employee would prefer to save it for later. However, if the employee wants to take earned comp time at a certain time, the district must allow it, unless the district can show that doing so would create an actual legitimate hardship.
An often-misunderstood legal requirement is that comp time awarded in lieu of overtime must be provided at “time and a half” just like overtime. In other words, a worker receives 1.5 hours of comp time for one hour of overtime. Again, it must be remembered, however, that comp time only comes into play if overtime has been worked, and overtime is determined on a weekly, not daily basis. So, if someone with an eight-hour-a-day. five-day-a-week job works nine hours one day and, in the same week is given an extra hour off so that by the work week’s end, the employee has still worked only a total of 40 hours, that “makeup time” for the extra hour worked does not have to be “time and a half” since it is not being used instead of overtime pay.
Finally, as noted above, a principal may give a teacher, an assistant principal or another educator exempt from the FLSA and thus not eligible for overtime some “comp time” to make up for extra hours put in, such as working at a special event, e.g., homecoming or a UIL competition. But this is an informal arrangement at the discretion of the supervisor and district—completely legal, but also absolutely not required by the law. 
Many educators perform duties separate from their “primary duty.” A teacher might also be a coach, a UIL sponsor or a department chair or might may stay after hours or come in on Saturdays to tutor. Not always, but often, these additional assignments come with additional compensation to cover the time and effort required by the additional duty. This additional compensation is commonly referred to as a stipend or supplemental duty pay and is handled somewhat differently than the compensation paid to educators for their primary duties.
Districts determine locally what supplemental duties carry a stipend and how large a stipend should be for a given duty. There can be wide differences from district to district.
Educators might wonder when a stipend can be taken away or reduced. The law in this area is complex. First, it is essential to know whether the stipend is covered by a contract. In some cases, such as coaching, the coaching assignment is specifically noted in the contract, creating what is commonly called a “dual assignment” teacher-coach contract. In these cases, the legal right to the coaching position created by the contract will usually also create a legal right to the related stipend. There may also be a separate contract that would create a legal right to continue receiving a stipend. But if the duty is not covered by a contract, it is usually considered “at-will” and can be ended at any time by either party, and, if ended, that might result in the end of the stipend as well—though not always. Because this area is so complex and individual cases can greatly vary, it is always a good idea to get immediate legal advice if a question arises.
Second, timing is important in determining whether a stipend can be reduced or eliminated. Generally, a district cannot reduce an educator’s total compensation unless the educator has been told at least 45 days before the first instructional day. So, an educator might have a right to even a noncontract stipend for an ongoing supplemental duty. There are a number of complex questions that have not been fully answered here as well, so again, if a question arises, it is important to get immediate legal advice. Eliminating a stipend mid-year is more difficult for the district unless it was the educator who chose to “quit” the duty related to the stipend, which could give the district good cause to stop the stipend. 
Performance pay—compensation based on an educator’s performance—is a newly emerging topic. Some districts have already begun some type of “pay for performance” system, often based on student achievement on state-mandated testing, either at the teacher or campus level. The Texas Education Agency has, for several years, administered several grant programs that provided possible stipends to individual teachers or campuses based on various metrics. There are many, both within the education community and outside it, calling for an expansion in policies that tie, in some way, educator compensation with some type of evaluation of the educator’s individual performance.
At this time, the performance pay programs that do exist are based on local policy or based on a locally developed grant proposal, so few, if any, generalities can be described here, other than the fact that educators must look to the local policy or grant to determine their eligibility for compensation based on the local policy or grant.
When it comes to pay, the first thing to do is to check your official service record. Most districts have adopted a “step” system for teacher compensation that bases teacher compensation on the number of years of teaching experience. The official service record is almost universally used to establish that number. So, a teacher’s compensation is only going to be right if the experience reflected in the service record in right.
Most districts’ compensation policies also state that the teacher herself is responsible for ensuring that her service record is accurate and that the district is only responsible for compensating the teacher based on what the service record actually says—even if it is wrong. Although some districts, after a mistake is noticed, might agree to pay a teacher back pay for past experience not properly noted on the service record, it is far from certain that a teacher will be able to collect back pay. So, the lesson of the story: It is important for all teachers to carefully review their service records—particularly when moving from one district to another.
Other educators, such as paraprofessionals or administrators, may also be paid on a step schedule based on prior experience, but there is much less uniformity in practice from district to district in these cases. Of course, because retirement benefits are also based on experience as reflected in the official service record, all educators should carefully review theirs, even if it does not affect their current compensation.     

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