By David Hill
David Hill is an Assistant Editor at Training & Conditioning.
Training & Conditioning, 12.2, March 2002, http://www.momentummedia.com/articles/tc/tc1202/overtime.htm
Houston and San Antonio are fewer than 200 miles apart, but when it comes to the fortunes of two Texas athletic trainers who challenged the way they were paid, the distance might as well be 2,000 miles.
Bill Wissen, ATC, was among a group of athletic trainers in suburban Houston's Alief Independent School District who filed a federal lawsuit seeking retroactive overtime. The judge sent the case to a mediator and, when a similar case from San Antonio appeared to be headed to a resolution in the athletic trainers' favor, Wissen's district settled, paid back overtime, and changed how its athletic trainers are scheduled and compensated. Wissen, despite having to serve some 1,300 athletes on 60 teams at his school with just one other athletic trainer, works 40 hours a week, every week, loves his job, and appreciates his good fortune.
"It's a great situation," Wissen says. "You have the freedom and the ability to get things taken care of and take care of the kids in the way that they should be taken care of. But you also have free time and a personal life."
Meanwhile, the lead plaintiff in the San Antonio case, Charles Owsley, ATC, no longer works in the school district. He and his eight co-plaintiffs lost their case when it was unsuccessfully appealed to circuit court, and the U.S. Supreme Court later refused to hear the case. Some of Owsley's former colleagues are still in the district and have had their schedules adjusted to reduce hours on the job. But Owsley now works at a health club as a personal trainer and, while he has other pursuits, he doesn't expect to ever return to school-based athletic training, at least not in the Lone Star State.
"It would be hard for me to get in a school district in Texas, because the lawsuit bears my name," he says. "Everybody in Texas knew about it. I don't think I would be a likely candidate."
The Wissen and Owsley stories illustrate the perilous unpredictability of challenging the systems under which many athletic trainers work. As they face greater demands from the growth of non-traditional seasons, additions of new sports, more out-of-season conditioning and practice sessions, and more calls for workout and event coverage, athletic trainers find their on-the-job time growing.
Some accept their grueling schedules as a natural part of the demanding but satisfying career they've chosen. Others, feeling stretched too thin, have sought help through legal channels. What follows is a look at some of the recent cases and what they might mean for the work of athletic training in the future.
LABOR LAWS INVOKED
The cases of these athletic trainers were based on the federal Fair Labor Standards Act, adopted by Congress in 1938 to avoid abuse of desperate Depression-battered workers and to stimulate hiring by making overtime costlier to employers. The law, amended many times since, governs such things as the minimum wage, paying workers on time, and the length of the work week. The athletic training cases are concerned with the provisions on overtime pay.
Federal labor law requires that workers be paid overtime for any time spent on the job past 40 hours in a work week. (The mandate doesn't apply until 40 hours in a week are passed, even if an employer's official workweek is shorter, such as 37.5 hours). Job title makes no difference. Moreover, being paid on a salary basis, instead of by the hour, doesn't automatically mean a worker can't make overtime, though it can be a factor. All that salary means is that the pay is the same every week regardless of hours spent on the job. Salaried workers may be exempt from overtime only because of the kind of work they do--and whether athletic training is such an occupation was the key question in Texas.
The law specifically exempts three main types of occupations from overtime rules: People whose primary job is to supervise two or more other employees, those whose are primarily administrators with decision-making discretion, and jobs that are considered "professions." But the term "profession" is loosely defined. As to whether athletic training is a profession for purposes of the overtime law, there is no definitive answer.
"The profession of athletic trainer and its requirements and expectations are still developing," says Jeff Chamberlain of the Albany, NY., law firm Chamberlain, Kaufman, and Jones, which specializes in wage and employment law. "We pretty much think that clergy are clergy whether they're a Baptist or a Methodist and whether they're in Oklahoma or Maine. But with athletic trainers, there's not a generally accepted definition that I'm aware of."
The closest to a defining case is Owsley v. San Antonio Independent School District, which claimed that the stipends paid for athletic training duties were too small for the number of hours they'd put in. Their pay was equivalent to that of the band director or cheerleader adviser, and far below those of coaches, especially heads of football programs.
"I was burned out. I was tired of working that much," Owsley says. "Initially, when we first filed the suit, we were averaging over the course of a school year 65 to 70 hours a week. A short week was 50 hours. That was an easy week. A hard week was 82 to 85 hours."
For 12 years, Owsley and his co-workers sought other pay plans. Among arrangements discussed were paying athletic trainers stipends equal to a percentage of those paid to the head coaches in each covered sport, or breaking teachers' pay to an hourly rate and paying that for each after-school hour. The district wanted full-time athletic trainers and agreed to remove their teaching duties, but otherwise nothing could be worked out.
"We were never considered medical professionals. We were always considered an extension of the coaching staff," Owsley says. "So we said, 'If you aren't going to treat us like health professionals, then pay us overtime. If we are professional, compensate us accordingly.'"
All but one of the athletic trainers in each of the San Antonio district's eight high schools took part in the suit. They were joined by their coordinator for a total of eight co-plaintiffs. The case boiled down to whether the athletic trainers met a two-part definition of the "professional" exemption. The first question was whether athletic training, as the plaintiffs practiced it, is an occupation requiring knowledge that is, in the words of the appeals court's final decision, "customarily acquired through specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes." Second, the court had to decide whether it is work that "requires the consistent exercise of discretion and judgment in its performance."
The local district court rendered a split decision, ruling that the Texas licensing requirement of 15 hours of specific college-level courses shows that being an athletic trainer in the district met the specialized-instruction test. But the court agreed with the plaintiffs that the athletic trainers may make decisions only within a well-defined and regulated framework, applying their specialized knowledge only in pre-set situations. That meant the athletic trainers would not be exempt from overtime.
In the appeal, a three-judge panel of the U.S. Court of Appeals Fifth Circuit upheld the view that the athletic trainers' Texas licensing requirements did amount to specialized training. The requirements include a bachelor's degree, 1,800 hours of apprenticeship over three years, five specialized college courses, and a CPR test.
But the judges found that the job required discretion, which torpedoed the plaintiffs' case. The court noted that parts of the San Antonio athletic trainers' job description laid out their duties without any reference to a team physician, and the judges determined that they do have decision-making responsibility.
"Trainers ... must also respond to emergencies and make quick, independent judgments about how to deal with unexpected injuries," the court's decision said. "These sorts of important and complex decisions, which require trainers independently to apply their experience and advanced training in human anatomy and medicine, satisfy the 'discretion' prong."
In March 2001, the U.S. Supreme Court declined to take the San Antonio case, letting the circuit court's decision stand. The outcome created new criteria other courts may cite when considering the professional exemption, but its applicability may be limited by the varying ways athletic training is credentialed and practiced place to place, Chamberlain says.
"The court said that in Texas if you want to be athletic trainer, that has a peculiar and specific definition down there. It means you have to have a particular kind of state license, and to get the state license, you have to have some particular educational training. But whether that's true in Idaho, whether that's true in Arizona, you'd have to check."
Under the Owsley decision, then, predicting the likelihood of prevailing in an overtime case seems to depend on the answer to two questions, Chamberlain says: How extensive is the education required to be an athletic trainer in a given place, and just how much discretion does a person in a particular job have?
"If the answer is there's a state license required and a proscribed course of real, live professional training, and in real life the athletic trainer makes decisions about when to bandage and not just does the bandaging, I'm likely to tell them that I think the odds are against them being eligible for overtime," Chamberlain says. "The question is going to be is the situation similar."
Owsley says he doesn't regret bringing the suit, which actually helped some Texas athletic trainers. For example, even though they lost their lawsuit, athletic trainers in the San Antonio school district gained scheduling flexibility. Now, they come in the morning to cover during the athletic periods commonly held for all students in Texas public schools, take off during mid-day for a few hours, and return for afternoon and evening events. Days remain long, but the flexibility has provided some relief.
Rex Hartwig, ATC, Coordinating Trainer for the San Antonio district, concurs, though he adds that the athletic trainers still put in long hours. The possibility of having to pay huge amounts of back overtime probably helped administrators put San Antonio athletic trainers on a flex-time schedule, Hartwig says. The district recently moved them from the teachers' pay scale to that of administrators, which all but guarantees they won't be sent back to classrooms, and the athletic trainers hope to make the best of the court's newly elevated view of their status in hopes of getting paid better.
"We're trying to use that judgment of being a professional to go back and say, 'We were considered professionals by the circuit court, and we need our due pay now,'" Hartwig says.
In 1994, Wissen filed his federal lawsuit. The results are dramatic. Today, overtime must be approved by higher-ups in Wissen's suburban Houston school district. Due to the costs, overtime is seldom approved, Wissen says. He works the early shift and gets home to see his school-age son's extracurricular activities, while the school's other athletic trainer, who is single, works afternoons and evenings. They alternate weekends. Wissen oversees some student athletic trainers, budgeting and inventory, but these duties don't make him a manager, as his athletic director and campus athletic coordinator make the final hiring and firing decisions.
The set-up requires planning and cooperation, but the two-shift approach means at least one certified athletic trainer is on site all day and during evening events. Wissen says the coverage level is more than adequate, but rarely does either have to work from early morning to night.
"We're still able to cover 17 hours a day as long as athletic practices and things are going on," Wissen says. "[One of us] is here from the time the kids get here early in the morning and we're here until the last one leaves every night," Wissen says.
"As athletic trainers, we were very happy that we were able to get it worked out," he continues. "Money is nice, but it's not the whole reason why we work. Basically we had to have a better working environment. Working 80 and 90 hours a week is pretty counterproductive. Your job performance is not very good, your family and social life suffers, and it can lead to some long-term problems. It didn't break the school district money wise, and I was able to keep my job, which I really enjoy."
KANSAS CASE FAILS
In the only other major wage-law case involving an athletic trainer, the Kansas Court of Appeals upheld a trial court's ruling that Terry Winkle, Head Athletic Trainer at Hutchinson Community College, is exempt from the overtime provisions. The court agreed with the college and the lower court that Winkle's duties of developing and managing the sports medicine program, managing the administration of health care to the college's student-athletes, and training and supervising student athletic trainers all meant he was covered by the exemptions for executive and administrative work. Furthermore, the court found Winkle was a "teaching professional" by virtue of his 12 hours of instructing sports medicine courses each academic year, and a "learned professional" whose work requires advanced knowledge, and that he exercises discretion and judgment.
Winkle's case has limited application outside Kansas because it's a state ruling and because the judges didn't fully explain their reasons, Cham-berlain says. Winkle's attorney, Jim Lawing of Wichita, also says it will have little impact but says it shows that judges have begun applying the exemptions more freely. "The spirit of the law is that the statute is to be construed liberally," he says. "Now it's construed very strictly."
While Owsley and Winkle lost when they went to court, some athletic trainers have gotten better results by raising the overtime issue in other ways, primarily with the U.S. Department of Labor Wage and Hour Division. The division's letters of opinion can carry weight in negotiations and help clarify questions in dispute.
About five years ago, athletic trainers at Rutgers University believed they were putting in too many hours. When Head Athletic Trainer Don Kessler, ATC/L, first took the issue to the administration, he was rebuffed. Later, the university's head of human resources read the details of the staff's actual duties and said they might have a pretty good case. The athletic trainers researched the law, hired an attorney, and got an opinion from the Department of Labor that the Rutgers athletic trainers' duties didn't make them exempt from overtime pay.
"We didn't get to make the decision as to when the practices were and when medical decisions were made," says Kessler. "We have a full-time team physician in our building who we truly work for and who makes the final decisions."
The athletic trainers were paid back overtime and their work hours were tallied. Kessler was allowed to enlarge his staff from seven to 11, and he budgets for overtime. Each staffer averages, over a year, "50-something hours" a week, he says.
The enlarged staff and added scheduling flexibility--athletic trainers' duty hours are largely tied to their teams' workouts and competitions, and they take time off when the workload is light--have allowed Kathy Galli, ATC/L, to stay in the field and manage family life, she says. Galli was at Rutgers when the case began but left for a teaching job with hours better suited to having small children. Now, back at Rutgers, she works a nearly 9-5 schedule, with flex time, which allows her to be home in the evenings with her school-age children. She believes the case helped make administrators pay attention to athletic trainers enough to carry out the changes that make the job much more manageable, particularly by hiring more of them.
"Before, I had difficulty keeping up with the paperwork," Galli says. "I was treating an average of 10 athletes in the athletic training room continuously from the time I walked in the door until the time I left, so I seldom had a chance to sit down and do paperwork. The job now is much less stressful. I am able to be more thorough because I have more time to spend with each athlete. I believe they're getting better care."
Similar changes were made at the University of Kansas, but the impetus largely came from outside the athletic department. Director of Sports Medicine and Head Athletic Trainer Lynn Bott, MS, ATC-R, recalls that questions were being raised around the university several years ago about whether academic research assistants were properly classified under the labor law. Administrators then wondered what other non-teaching employees might be incorrectly classified, potentially opening up the university to litigation. Concern spread to the athletic department, and Bott was asked to provide detailed job descriptions for athletic trainers. The administration decided that they were non-exempt.
Now, with athletic trainers paid on an hourly basis, Bott stresses scheduling and efficiency. Adequately doing the job in 40 hours a week just isn't realistic, he says, so he budgets for overtime. Bott also makes sure that his staff's hours are properly recorded. For instance, time spent traveling for work, as opposed to commuting to work, must be paid for--though once the athletic trainers arrive at their hotel, they "punch out, so to speak," Bott says.
Where do these cases leave athletic trainers? Should they hope that the law might help in their particular circumstances, or must they resign themselves to long hours with little time for a personal or family life?
One answer may be to make some noise--controlled, pinpointed noise, aimed at decision makers and backed with good, hard data. It worked for Hal Hilmer, ATC/L, Head Athletic Trainer at John Hersey High School in Arlington Heights, Ill. As his school district added sports and levels of sports through the 1990s, workloads grew for Hilmer and his assistant, who are both primarily teachers paid with stipends for their athletic training duties. He became disgruntled and disillusioned about the job. But he joined with counterparts at the district's other five high schools, and documented their duties and workloads. Hilmer says he and his colleagues used their treatment logs to demonstrate how many injuries they were handling. "We had information such as the number of students in a sport and the number of sports in a season, and the average number of students we see daily," he says. "And we put together a calendar from month-to-month of how many hours we spend each day, so that people can actually see on a day-by-day basis that I'm here from this time to this time in the training room, I'm covering from this time to this time, I'm covering maybe this athletic event here or maybe my assistant is."
The documentation helped convince administrators to take on more athletic trainers. Now, event and practice coverage, rehabilitation and injury care are spread among three people, Hilmer can get away from school early once a week or so, and weekend duties are rotated among the three.
"Show them the big picture," Hilmer advises. "Many administrators don't see the big picture. They only show up at one or two athletic events and they think that's all you're there for. They don't realize that you're also there for all the practice and for any other things that go on and for all the other contests."
Another strategy is getting the backing of players and parents. In the San Antonio case, the plaintiffs and their lawyers had planned to emphasize the respect athletes and their families showed for athletic trainers, says Steve Cochran, one of their attorneys. "We felt like we probably could have generated some parental support," Cochran says. "They just love these guys. They take care of their kids on a daily basis. And we would have talked about the number of hours they spend away from their families because they're out till 10:30 at night with football games and basketball games."
SCHEDULE THE SOLUTION
If administrators do agree to cut athletic trainers' hours, the question remains: How do you get the work done? There is no easy answer, but the key appears to be more closely matching work hours to the needs of athletes. It takes more planning and teamwork, but head athletic trainers who use flexible scheduling say it helps shorten work weeks. The central component is communicating to coaches and administrators that if they want care for their athletes, consideration has to be given to the people providing it.
A key at the University of Kansas was communicating to sport coaches the importance of establishing and sticking to practice schedules, Bott says. "We know if women's basketball's going to practice at 1 p.m., the men are probably going to go at 4:30. I can give a staffer who works basketball some time off in the afternoon before he comes in at 3:30.
"I'd say seldom do we have a practice that just jumps out at us at 7:30 at night that was really scheduled for 1 o'clock in the afternoon. The bottom line is being respectful of each others' time--the athletic trainers, strength and conditioning coaches,' and the (sport) coaches.' If everybody understands we're in this as a team, it works out pretty darn good."
Washington State University Head Athletic Trainer Bill Drake, MEd, ATC, has his staff of eight certified athletic trainers split up the workday to minimize hours. Instead of an old-school approach of each staffer handling anything involving his or her assigned sport, they rotate duties such as opening the training room before everyone else arrives, staffing it at lunch time, and staying late for evening practices. They meet Monday mornings to update one another on athletes' current conditions, and post their treatment sheets on a shared computer drive to help keep everyone in the know. If the athletic trainer in charge of football will be at a late-afternoon practice, for instance, he or she can have another athletic trainer handle a tight-end's early morning ankle rehab without having a built-in 12-hour day.
"It's working well," Drake says. "The athletes are covered. The treatments still get done. We're open for lunch every day. It's just not all of us are here at lunch that day. We close late at night, sometimes 7 or 8 p.m., but not every one of us is here until then."
Sometimes, it takes making other people aware that there are limits. In the District of Columbia Public Schools, Athletic Health Care Services Coordinator Frank Walters, PhD, ATC, says it's a matter of communication and prioritizing. He allows his 11 staff members to accompany a team out of the city only once a season because travel time is work time and must be paid. Staffers have cell phones to be alerted of schedule changes, and priority is given to covering competitions, which is mandated in District of Columbia law. Each athletic trainer must notify Walters if he or she is on pace to work more than 40 hours in a given week, and coaches are told that they can't expect a certified athletic trainer at every practice.
"Coaches have come to understand that, when there are athletic activities that pull ATCs away, they (coaches) have to take care of themselves," Walters says.
Jeff McKibbin, MEd, ATC/L, Head Trainer and Assistant Director of Athletics at the University of Central Oklahoma, stresses efficiency with his athletic-training students. He says it's important to instill some sense of time management, the ability to set priorities, and the determination to say no when necessary.
"Most athletic trainers are task-driven," McKibben says. "They're going to do what it takes. They're not going to worry about what time it is. That's admirable, but sometimes it causes headaches down the road, and especially if you do it for one sport, another sport coach says, 'Why can't you do it for me?' You open up another avenue for additional hours that really may or may not need to be spent."
THE BIG PICTURE
Although the Owsley case illustrated the pitfalls of taking matters to court, turning to the law should not be ruled out, says Chamberlain. The ruling might be cited in other courts, but because each situation governs, it leaves room for the overtime requirement to apply in certain circumstances.
Chamberlain says that some athletic trainers may be able to turn to state wage laws, employment contracts, and collective bargaining agreements. As for the federal laws, "They're at least worth consulting by employees who have wage and hour questions. And when an employee is covered by this law in a relevant way, it's a very powerful statute. It works pretty well, once you get into the universe."
Ned Erlich, ATC, an athletic trainer-turned lawyer who represented the Rutgers staff in their overtime dispute, sees some good coming from the cases for his former occupation, even if they don't always end in the athletic trainers' favor. Citing attorney-client privilege, he declined to discuss the case itself but noted that these cases are bringing attention to the workloads that people in the field provide.
"I think there's a quality of life evaluation that's going on," says Erlich. "Athletic trainers are saying, 'I'm willing to take the salary, but I'm not willing to work 90 hours a week for it. If you don't want to pay me overtime, fine, then get help so that I don't have to work 90 hours a week.'"
A version of this article also appears in the current issue of our sister publication, Athletic Management.
Overtime sidebar: FLSA at a glance
The key question in Owsley v. San Antonio Independent School District was whether the professional exemption of the federal Fair Labor Standards Act (FLSA) applies to athletic trainers. However, two other exemptions could come into play in future litigation between athletic trainers and their employers. Here is a thumbnail sketch of the exemptions and how they might apply to you:
Executive: People who supervise two or more employees and for whom managing is their primary role are exempt. Thus, a head athletic trainer may not be eligible for overtime pay. But what about an assistant athletic trainer who is left in charge say, from 4 p.m. to midnight, or from 5:30 a.m. to 9 a.m.?
"The way to understand that one is to think of the night manager at Burger King," says Jeff Chamberlain, a partner in Chamberlain, Kaufman, and Jones, an Albany, NY., law firm that specializes in labor-law disputes. "If you went into the Burger King on any given night you would see very little difference between what the night manager did and what the high school kids do. But she's still the boss. If in the course of that evening something comes up that requires a managerial decision, she's there to make it. The rule of thumb is if I call the store and ask to speak to the boss, who do they give the phone to?"
Administrative: This is for employees who mainly perform office or other non-manual work related to management policies or general business operations, do such work in an educational establishment, assist an executive, or carry out special assignments, according to a Labor Department fact sheet on exemptions. They must regularly exercise discretion and judgment, and be paid on a salaried basis.
"Administrative exemptions are for support rather than operations people, and commonly defined, an athletic trainer is an operations person," says Chamberlain. "She isn't maintaining the business operation as a whole. She is, if you will, part and parcel of sales and service." From this perspective, athletic trainers would seldom qualify for this exemption.
Of course, athletic trainers have paperwork, they order supplies, and manage the training room. But the controlling factor is their primary function. "The most big-shot lawyer still files papers, still prepares correspondence, still answers the phone on routine sales calls, still does a whole bunch of stuff which in and of itself is non-exempt work," Chamberlain says. "But what's my real job? It's being a lawyer. And the non-exempt tasks that are incidental to my real job don't change the status of my real job."
This primary-function distinction comes into play in other questions. In many high schools, athletic trainers often are also teachers, a profession specifically exempt from the law. And if teaching is the primary function, then that person is exempt from the overtime-pay requirement. Chamberlain offers this example: A person whose job title is math teacher but who really is the janitor isn't exempt and would be due overtime. But a math teacher who also makes $5,000 a year as a junior-varsity basketball coach is exempt because he's primarily a math teacher.
Many people assume that because they're paid on a salaried basis, they're automatically ineligible for overtime. Not true, says Chamberlain. Being paid hourly does make someone covered by the overtime rule. But for purposes of the FLSA, "salaried" means only that a person's pay is the same each week, no matter the quantity or quality of work. What counts are the duties and whether they make the person exempt. The U.S. Department of Labor has guidelines on determining the overtime pay rate for non-exempt salaried employees, and more information is at its web site.
"A secretary is non-exempt even if you pay him or her on a salary, and the reason is that clerical work is non-exempt work," Chamberlain says. "The CEO of IBM is non-exempt if they are stupid enough to pay him or her 10 bucks an hour, or even 100 bucks an hour."