Many caseworkers at private and nonprofit foster care and child welfare agencies are paid a salary and labeled exempt. The actual work — home visits, court reports, case plans and documentation — frequently does not meet the federal tests for an exemption.
An employer that calls you “exempt” generally has to prove all three:
Most caseworkers clear the salary tests. The duties test is where the label often fails.
Our focus is caseworkers at private and nonprofit agencies, including the many agencies that contract with a state to provide foster care, adoption, family preservation and case management services.
Public agencies are different in one important way. A state, county or city child welfare agency can, under 29 U.S.C. § 207(o), give public employees compensatory time off instead of overtime pay, at a rate of at least one and one-half hours for each overtime hour. Comp time is capped at 240 hours for most work, and 480 hours for public safety, emergency response or seasonal work. Once an employee reaches the cap, further overtime has to be paid in cash.
That comp-time option belongs to public agencies only. A private or nonprofit agency, including one that does the state’s work under contract, generally has to pay overtime in money, at time-and-a-half, for hours over 40 in a workweek.
Many child welfare agencies are nonprofits, and many caseworkers assume that means the overtime law does not apply to them. Often it does. A nonprofit is covered when it meets the law’s enterprise coverage rules, and individual employees can be covered on their own work. See nonprofit case managers.
Learned professional (29 C.F.R. §§ 541.300–.301). This exemption requires a primary duty using “advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Fact Sheet #17D says it is limited to professions where “specialized academic training is a standard prerequisite for entrance into the profession.” Many caseworker jobs accept a bachelor’s degree in social work, psychology, criminal justice, education or a “related field.” The regulation says the exemption does not cover jobs that can be done “with only the general knowledge acquired by an academic degree in any field.” A social work degree is not automatically enough. See the learned professional exemption and social workers.
Administrative (29 C.F.R. §§ 541.200–.203). This requires work “directly related to the management or general business operations” of the employer and a primary duty that includes “the exercise of discretion and independent judgment” on matters of significance. The rules say that means more than “applying well-established techniques, procedures or specific standards described in manuals or other sources.” Caseworkers who follow state standards, agency policy, court orders and supervisor approval are usually delivering the agency’s service, not managing its business. See the administrative exemption.
Caseworkers work evenings for visits, weekends for placements and late nights catching up on notes. On-call time, driving between visits and documentation finished at home can all count as hours worked. Travel between work sites during the workday generally counts; the normal commute from home to the office usually does not. Related pages: case managers, care coordinators and service coordinators.
No Texas statute requires a private employer to pay overtime, so for a Texas caseworker this is a federal claim under the FLSA. A colleague doing the same job in another state may also have a state wage claim with its own limitations period and damages. The federal remedy is the unpaid overtime premium plus an equal additional amount as liquidated damages, with the employer paying your attorney’s fees and costs if you prevail. The period reaches two years back from the date of filing, or three years if the violation was willful; see how far back an overtime claim reaches.
Very often, yes. Nonprofit status alone does not exempt an employer. Coverage turns on the agency’s activities and size, or on your own work.
Generally no. The federal comp-time option in 29 U.S.C. § 207(o) is for public agencies. A private or nonprofit contractor generally has to pay overtime in money.
Public employees are covered by the overtime law too, but your employer may be allowed to give comp time instead of cash, within limits. Our practice focuses on private and nonprofit agencies.
Travel between work sites during the workday generally counts as work time. Your normal commute from home to the office usually does not.
Not by itself. The degree matters only if the job actually required that training and your main work uses it. If the posting accepted a bachelor’s in any of several fields, that cuts against the exemption.
Federal law prohibits retaliation against employees who complain about unpaid wages or join an overtime claim.
We represent employees only. Jack Siegel has filed cases in 25 federal districts across 20 states and obtained 50+ class and collective certifications in 19 federal judicial districts across 14 states, as lead counsel on the firm’s cases. The firm has recovered more than $100 million for workers.
Prior results do not guarantee or predict a similar outcome in any future matter. These are results in other people’s cases. Each case is decided on its own facts, its own record and its own procedural posture. Conditional certification and class certification are procedural rulings about whether a case may proceed as a group action; they are not findings of liability and they are not an award of money. This website contains attorney advertising.
Salaried at a foster care or child welfare agency, called exempt, and working well past 40? Send us your job posting and pay records for a free review. You pay no fee and no costs unless we recover. Call or text (214) 790-4454, email [email protected], or reach us through our contact page.
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