COVID-19 Legal FAQ Update – ESP Rights to Breaks and Overtime (Revised)

Memorandum

From:  CEA Legal Center

Date:  June 24, 2020

RE:  COVID-19 Legal FAQ Update – ESP Rights to Breaks and Overtime (Revised)


This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law. CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.

Question: Do the COVID-19 health and safety protocols applicable to public schools alter the rights of ESPs to breaks, meal periods and overtime compensation?

Answer: ESPs who have a right to breaks and/or meal periods under a negotiated agreement or school district policy retain these rights; these rights are not nullified or affected by COVID- 19 health and safety protocols. The Fair Labor Standards Act, a federal law, gives ESPs a legal right to overtime compensation if they work more than 40 hours in a workweek. School districts must continue to comply with this law, as well. It would be very difficult for a school district to prove that it could not comply with both applicable COVID-19 protocols and these contractual and statutory rights.