Earlier this week, in a matter of first impression within the Second Circuit, Judge P. Kevin Castel of the Southern District of New York held that employees who teach English as a second language (“ESL”) at a privately-owned ESL learning center qualify for the professional exemption under the FLSA as “teachers.” Fernandez v. Zoni Language Ctrs., 2016 U.S. Dist. LEXIS 65310 (S.D.N.Y. 2016).
Plaintiffs taught English to students at language learning centers operated by Defendants. They alleged that they performed work outside of their time in the classroom for which they were not compensated and therefore sought damages for unpaid minimum wage and overtime. Plaintiffs conceded that they were employed as “teachers” in that they had the “primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge,” but disputed whether they did so while “employed and engaged in this activity as a teacher in an educational establishment,” as also required under the applicable exemption regulation. 29 C.F.R. § 541.303(a). The Court found that the ESL centers constituted “other educational institutions” – one of the three types of qualifying educational establishments recognized in DOL regulations (along with an “elementary or secondary school system [and] an institution of higher education”). 29 C.F.R. § 541.204(b).
While Plaintiffs maintained that the identification of “special schools for mentally or physically disabled or gifted children” and “post-secondary career programs” within the text of § 541.204(b) meant that these were the only types of “other educational institutions” intended to be covered, the Court rejected Plaintiffs’ narrow reading of the regulation, finding the examples listed in the regulation as merely illustrative, not exhaustive. That threshold question considered, the Court analyzed whether the the Defendants’ ESL centers actually were such an “other educational institution” using eight separate, non-dispositive factors: (1) the title of employees; (2) the certifications required of teachers; (3) the formality of courses; (4) the granting of certificates or degrees; (5) the organization’s charter; (6) the teacher’s involvement in organizing, communicating and delivering curriculum; (7) whether the organization is licensed by a state agency responsible for the state’s educational system; and (8) whether the organization is accredited by a nationally recognized accrediting organization. Although the Court analyzed all eight factors, it was particularly swayed by the evidence that the teachers at Defendants’ language learning centers must possess a “baccalaureate or equivalent degree,” the similarity between the ESL courses offered at Defendants’ learning centers to courses offered at traditional schools and the fact that Defendants’ ESL centers are licensed and certified by the New York State Department of Education and accredited by the Accrediting Council for Continuing Education and Training.
Employers that operate in the education field must analyze whether learning centers constitute “educational institutions” under the regulations to the FLSA, and in turn, therefore, whether the teachers employed by the learning centers are exempt professionals. State law, of course, must be separately analyzed.