Ark. Code Ann. § 6-17-2205, a part of the Classified School Employee Minimum Salary Act, addresses two topics. First, the statute requires each school district to provide no fewer than two (2) paid fifteen (15) minute breaks during each regular workday for each classified school employee who works more than twenty (20) hours per week. Second, the statute mandates that each school district file an affidavit with the Arkansas Department of Education (ADE) to show compliance with the Fair Labor Standards Act (FLSA), unless the school district policies or state laws impose higher standards.
Act 1104 of 2015, codified as Ark. Code Ann. § 6-17-2207, addressed the topic of paid breaks for classified school employees while creating a requirement that public schools and school districts provide at least one (1) thirty (30) minute, uninterrupted, duty-free lunch period during each student instructional day for each full-time nonexempt classified employee—that is, for each classified employee who works thirty-five (35) hours or more per week for a public school district and who is entitled to overtime pay under the FLSA—except in an emergency. The Code defines emergency as "a time when the health and safety of a child is immediately at risk." Importantly, a full-time nonexempt classified employee who receives one (1) thirty (30) minute, uninterrupted, duty-free lunch period is not entitled to two (2) paid breaks under § 6-17-2205. Further, any full-time nonexempt classified employee who does not receive a duty-free lunch period shall be compensated at his or her hourly rate of pay for each duty-free lunch period missed. A public school or school district is exempt from the requirements of § 6-17-2207 if the public school or school district has collectively negotiated a contract for classified employees through a local teachers’ association and the negotiated contract expressly addresses a duty-free lunch period.
Given the mandate that every school district must verify compliance with FLSA, the ADE strongly suggests that every school district seek the advice of legal counsel to ensure strict adherence. Additionally, the Department of Labor (DOL) has an online compliance site that districts/districts’ representatives may find helpful. The “elaws” interactive site is available on the internet at: http://webapps.dol.gov/elaws/flsa.htm. The following sample affidavit is listed for review purposes only. Again, it is recommended that each individual school district seek the advice of legal counsel on the exact wording of the affidavit:
"In accordance with Ark. Code Ann. § 6-17-2201 et seq., I have investigated whether (enter applicable school district) School District is in compliance with the Fair Labor Standards Act. I have reviewed Department of Labor information concerning compliance with the Fair Labor Standards Act. Based upon this review, to the best of my knowledge and belief, (enter applicable school district) School District is in compliance with the Fair Labor Standards Act’s requirements for classified employees for the 2016-2017 school year."
The affidavit should be submitted to the ADE Attorney’s Office, Four Capitol Mall, Room 301-A, Little Rock, AR 72201, no later than February 28, 2017. Please be reminded that the affidavit must be notarized in order to be valid. Questions or comments may be directed to the ADE Attorney’s Office at 501-682-4227.