From: CEA Legal Center
Date: April 8, 2020
RE: COVID-19 Legal FAQ Update – Pay Advances/Loans to ESP’s
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: Many educational support personnel (ESPs) are not working and not being paid while the schools are closed. Is there any money that these employees may be able to access temporarily to get them through this crisis?
Answer: The Fair Labor Standards Act (FLSA), a federal law which covers educational support personnel (ESPs), permits school districts to make pay advances/loans to ESPs. ESP members of CEA who are not being paid during the current COVID-19 crisis should consider requesting loans/pay advances from their districts if they are temporarily short of money.
Such a pay advance/loan requires a specific advance agreement between the employer and employee. Some of the terms of this agreement are legally required, while others are subject to negotiation. The Legal Department recommends the following terms for any pay advance/loan agreement between an ESP and a school district:
- the agreement should be in writing and signed by the employer and employee;
- the agreement should state the specific amount of the pay advance/loan and when it will made to the ESP;
- the agreement must provide that the money will be recouped by the school district via deductions from the employee’s paychecks;
- the agreement should state the specific amount of the deductions and number of paychecks from which deductions will be made;
- the agreement must provide that, if the ESP’s employment terminates prior to full repayment of the pay advance/loan, the school district may deduct the entire remaining debt from the employee’s final paycheck or otherwise demand full payment of the remaining debt; and
- the agreement should state that the school district will not charge the employee any administrative costs, interest, fees or other monies in connection with the pay advance/loan.
Any CEA member who has questions about this or wants assistance in requesting a pay advance/loan should contact his/her Union representative’s office.