The Seasonal Establishment Exemption
Summer camp employees typically qualify for Seasonal Establishment Exemption under federal and New York State wage and hour laws. Thus, for the employees who fall under these exemptions, there are no minimum wage or overtime protections available. This post outlines which summer camp employees are exempt from minimum wage and overtime protections.
Federal Law and the Seasonal Establishment Exemption
Fair Labor Standards Act (“FLSA”) Section 13(a)(3) (29 U.S.C. § 213(a)(3)) provides an exemption from the FLSA’s minimum wage and overtime provisions for employees of amusement or recreational establishments, organized camps, or religious or non-profit educational conference centers if either:
- The establishment does not operate for more than seven months in any calendar year, or
- During the preceding calendar year, the establishment’s average receipts for any six months were not more than 1/3rd of its average receipts for the other six months of the year.
For purposes of the first test, whether an establishment “operates” during a particular month depends upon whether it operates as a covered establishment during the month. For example, a seasonal camp that is closed to guests but that carries on maintenance operations during a given month is not regarded as “operating” in that month.
For purposes of the second test, the monthly average receipts for the six individual months (not necessarily consecutive) in which receipts were lowest are compared to the monthly average receipts for the six months in which receipts were highest.
For more information, see the U.S. Department of Labor Wage and Hour Division Fact Sheet regarding Seasonal Amusement or Recreational Establishments, available online at: http://www.dol.gov/whd/regs/compliance/whdfs18.pdf
New York State Law and the Seasonal Establishment Exemption
New York State Labor Law also contains a seasonal establishment exemption which exempts certain summer camp employees from overtime pay, if the employee is engaged as a “staff counselor.” 12 NYCRR § 142-2.14(8). A staff counselor “is a person whose duties primarily relate to the guidance, instruction, supervision and care of campers in a children’s camp, whether such work involves direct charge of, or responsibility for, such activities, or merely assistance to persons in charge. The terms staff counselor includes, but is not limited to: head counselor, assistant head counselor, specialist counselor (such as swimming counselor, arts and crafts counselor, etc.), group or division leader, camp mother, supervising counselor, senior counselor, counselor, general counselor, bunk counselor, assistance counselor, co-counselor, junior counselor, and counselor aide.” Children’s camp is an establishment which “is engaged in offering for children … recreational programs of supervised play or organized activity … for a period not exceeding 17 consecutive weeks during the year.”
For more information, see the New York State Department of Labor Minimum Wage Order for Miscellaneous Industries and Occupations, available online at: http://www.labor.ny.gov/formsdocs/wp/CR142.pdf
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