Fernandez v. Zoni Language Centers, Inc.
OPINION, affirming judgment of the dstrict court, by GC, RR, GEL, FILED. [16-1689]
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Fernandez v. Zoni Language Ctrs., Inc.
United States Court of Appeals
For the Second Circuit
August Term, 2016
(Argued: December 9, 2016 Decided: May 26, 2017)
Docket No. 16‐1689‐cv
ZHARA FERNANDEZ, TANYA CHAMBERS, KENYA BROWN, AMY CHU, JOHN VOLPE,
ANDREW BULLINGTON, individually and on behalf of others similarly situated,
ZONI LANGUAGE CENTERS, INC. (D/B/A ZONI LANGUAGE CENTERS), ZONI
LANGUAGE CENTERS‐FLUSHING LLC (D/B/A ZONI LANGUAGE CENTERS), and
ZOILO C. NIETO,
CALABRESI, RAGGI, LYNCH, Circuit Judges.
On appeal from a judgment entered in the United States District Court for
the Southern District of New York (Castel, J.), dismissing minimum wage and
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page2 of 25
overtime claims under the Fair Labor Standards Act (“FLSA”), see 29 U.S.C.
§§ 201 et seq. Plaintiffs, who are employed by defendants as English language
teachers, argue that it was error to afford defendants the FLSA’s exemption for
bona fide professional employees, see id. § 213(a)(1), because defendants are not
“educational establishment[s],” as required by law, see 29 C.F.R. §§ 541.303(a),
JOSHUA S. ANDROPHY, Michael Faillace & Associates, P.C.,
New York, New York, for Plaintiffs‐Appellants.
STEPHEN I. LATZMAN, Esq., New York, New York, for
REENA RAGGI, Circuit Judge:
Plaintiffs Zhara Fernandez, Tanya Chambers, Kenya Brown, Amy Chu,
John Volpe, and Andrew Bullington are or were employed to teach English as a
second language by defendants, two Zoni Language Centers, one in Manhattan
and the other in Queens, as well as the centers’ president, Zoilo C. Nieto
(collectively, the “Zoni Centers”). On behalf of themselves and others similarly
situated, plaintiffs filed this putative class and collective action in the United
States District Court for the Southern District of New York (P. Kevin Castel,
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page3 of 25
Judge), alleging that defendants violated the Fair Labor Standards Act (“FLSA”),
see 29 U.S.C. §§ 201 et seq., and New York Labor Law, see N.Y. Lab. Law §§ 650 et
seq., in failing to pay them both the statutory minimum wage for hours worked
out of the classroom and statutory overtime when plaintiffs’ classroom and out‐
of‐classroom work exceeded 40 hours per week. On this appeal, plaintiffs
challenge the district court’s dismissal of their FLSA claims for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6); Fernandez v. Zoni Language Ctrs., Inc., No. 15‐
cv‐6066, 2016 WL 2903274 (S.D.N.Y. May 18, 2016). They argue that defendants
were not entitled to the exemption from the FLSA’s minimum wage and
overtime requirements applicable to teachers working as bona fide professionals,
see 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.303(a), because defendants are not
“educational establishment[s],” as required for that exemption to apply, see 29
C.F.R. §§ 541.303(a), 541.204(b).
For the reasons stated herein, we conclude that the Zoni Centers are
“educational establishment[s]” under 29 C.F.R. § 541.204(b) and, accordingly, we
affirm the judgment in defendants’ favor.1
1 Upon dismissing plaintiffs’ federal claims on the merits, the district court
declined to exercise supplemental jurisdiction over related state law claims and,
instead, dismissed these claims without prejudice to refiling in state court. See
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Defendants Zoni Centers
Defendants Zoni Centers are part of a chain of private, for‐profit facilities
offering English language instruction. Both Zoni Centers are licensed by the
New York State Department of Education as English‐as‐a‐Second‐Language
schools, as required by state law. See N.Y. Educ. Law § 5001(1), (1)(b), (4)(f)(4).
They are also accredited by the Accrediting Council for Continuing Education
and Training, one of ten institutions deemed “Nationally Recognized Accrediting
Agencies” by the United States Department of Education. See Accreditation–
Agency List, U.S. Dep’t of Educ., http://ope.ed.gov/accreditation/Agencies.aspx
(last visited May 23, 2017).
Fernandez v. Zoni Language Ctrs., Inc., 2016 WL 2903274, at *12–13. Because
plaintiffs raised no challenge to that decision but, rather, urged it, see Pl’s Opp. to
Mot. to Dismiss at 16 n.3, Fernandez v. Zoni Language Ctrs., Inc., No. 15‐cv‐6066,
(S.D.N.Y. Dec. 11, 2015), ECF No. 21 (“Plaintiffs acknowledge that if the Court
dismisses Plaintiffs[’] federal claims, the Court should decline to continue to
exercise supplemental jurisdiction over the state law claims of the Complaint.”),
we affirm this part of the judgment without further discussion, see Indiana Pub.
Ret. Sys. v. SAIC, Inc., 818 F.3d 85, 93 (2d Cir. 2016) (declining to consider any
challenge to dismissal of claims where “affirmatively waived”).
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Plaintiffs’ Employment at Defendants’ Zoni Centers
Each of the named plaintiffs is or was employed as an English‐language
instructor at one of the two defendant Zoni Centers. As such, they not only teach
English language classes held at the Zoni Centers, but also devote time outside of
class to creating lesson plans consistent with Zoni’s curriculum standards,
grading students’ midterm and final examinations, and attending professional
development meetings. Like teachers at primary and secondary schools,
plaintiffs receive no extra compensation for these outside‐the‐classroom
activities. But unlike primary and secondary school teachers, who generally
receive a fixed salary for the totality of their work, plaintiffs are paid at an hourly
rate—here, $16 to $17 per hour—calculated by reference only to their classroom
teaching time. Plaintiffs allege that their preparation and grading of student
work represents a material part of their worktime and should be compensated in
addition to classroom time.2
2 Various allegations in the complaint can be summarized as asserting that
plaintiffs on average were paid for approximately between 25 and 35 hours of in‐
class time each week, but that they spent on average between 8 and 10
uncompensated hours per week preparing for class. Thus, the complaint asserts
that something on the order of 15–30% of plaintiffs’ work time was
uncompensated, depending on the plaintiff and the particular week (since
plaintiffs’ hours varied depending on the curriculum and exam schedules).
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Plaintiffs filed this action on August 3, 2015, seeking compensation under
the FLSA and applicable state law for (1) unpaid minimum wages for their out‐
of‐classroom work, see 29 U.S.C. § 206(a); and (2) overtime pay for any weeks in
which a teacher’s total work time inside and outside the classroom exceeded 40
hours, see id. § 207(a). The Zoni Centers moved to dismiss the complaint, arguing
that plaintiffs, as “teachers” at an “educational establishment,” 29 C.F.R.
§ 541.303(a), are subject to the FLSA’s exemption from minimum wage and
overtime requirements for persons “employed in a bona fide executive,
administrative, or professional capacity,” 29 U.S.C. § 213(a)(1). In opposing the
motion, plaintiffs conceded that they were “teachers” under the applicable
regulation, but disputed the Zoni Centers’ status as an “educational
On May 18, 2016, the district court concluded, based on its review of eight
factors, that the Zoni Centers were properly characterized as “other educational
institution[s]” within the meaning of the Department of Labor’s (“DOL’s”)
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exemptive regulations.3 Accordingly, it dismissed plaintiffs’ FLSA claims on the
merits and declined to exercise supplemental jurisdiction over their state‐law
claims. A final judgment of dismissal was entered the same day, from which
plaintiffs now appeal.
3 Citing two opinions from outside this circuit, see Astor v. United States, 79 Fed.
Cl. 303, 316–17 (2007); Escobedo v. Constr. Laborers’ Educ. Training & Apprenticeship
Fund, No. 11‐cv‐3653, 2012 WL 4838880, at *4–6 (D. Minn. Oct. 11, 2012), as well
as the applicable DOL regulation, 29 C.F.R. § 541.204(b), the district court
identified the following eight factors as relevant to determining whether a
facility qualifies as an “other educational institution”:
(1) the title of employees;
(2) the certifications required of [employees];
(3) the formality of courses;
(4) the granting of certificates or degrees;
(5) the [institution’s] charter;
(6) the [employees’] involvement in organizing, communicating and
(7) whether the [institution] is licensed by a state agency responsible for
the state’s educational system; and,
(8) whether the [institution] is accredited by a nationally recognized
App’x 91–92; see Fernandez v. Zoni Language Ctrs., Inc., 2016 WL 2903274, at *8.
While we agree that these factors can be helpful in identifying an “other
educational institution” that may qualify under the bona fide professional
exemption applicable to teachers, we do not adopt these factors as a formal test
determinative in every case.
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Standard of Review
We review de novo both the district court’s interpretation of administrative
regulations, see Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir.
2012), and its judgment of dismissal under Rule 12(b)(6), accepting plaintiffs’
plausible allegations as true and drawing all reasonable inferences in their favor,
see Chen v. Major League Baseball Props., Inc., 798 F.3d 72, 76 (2d Cir. 2015).
The FLSA’s Exemption for Bona Fide Professionals, Including
Teachers at Educational Establishments
The FLSA generally requires employers to pay “employees a specified
minimum wage, and overtime of time and one‐half for hours worked in excess of
forty hours per week.” Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 533 (2d
Cir. 2015) (citing 29 U.S.C. §§ 206–207). Because the FLSA is remedial legislation,
we construe its exemptions narrowly and place the burden on the employer to
show that his establishment is “plainly and unmistakably within the terms and
spirit” of the exemption. Chen v. Major League Baseball Props., Inc., 798 F.3d at 81
(internal quotation marks omitted).
The statutory exemption at issue here states that the FLSA’s minimum
wage and overtime requirements “shall not apply with respect to . . . any
employee employed in a bona fide executive, administrative, or professional
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page9 of 25
capacity (including any employee employed in the capacity of academic
administrative personnel or teacher in elementary or secondary schools).”4 29
U.S.C. § 213(a)(1); see Anani v. CVS RX Servs., Inc., 730 F.3d 146, 150 & n.4 (2d Cir.
2013). The DOL, which administers the FLSA, see 29 U.S.C. § 204, has
promulgated regulations pertinent to this exemption, see 29 C.F.R. pt. 541. The
regulations at issue here, having undergone the notice‐and‐comment process, see
Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122 (Apr.
23, 2004) (codified at 29 C.F.R. pt. 541), “’have the force of law, and are to be
given controlling weight unless they are found to be arbitrary, capricious, or
manifestly contrary to the statute,’” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d
at 559 (quoting Freeman v. Nat’l Broad. Co., 80 F.3d 78, 82 (2d Cir. 1996)). The
parties here make no such challenge to the DOL’s regulations. Rather, they
dispute only the regulations’ meaning. Before addressing that dispute, we make
a few observations.
4 In this opinion, we address only so much of the exemption as applies to
teachers, who are “professional” rather than “executive” or “administrative”
employees. See 29 C.F.R. § 541.303(a).
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In general, an employer relying on the “bona fide professional” exemption
from the FLSA’s minimum wage and overtime mandates “must satisfy both a
duties requirement and a salary requirement.” Anani v. CVS RX Servs., Inc., 730
F.3d at 147. To satisfy the duty requirement, the employer must generally show
that the employee’s work requires “knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction,” or “invention, imagination, originality or talent in a
recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a)(2). To
satisfy the salary requirement, the employer must show that the employee has
been “[c]ompensated on a salary basis at a rate of not less than $455 per week.”
29 C.F.R. § 541.600(a); see Anani v. CVS RX Servs., Inc., 730 F.3d at 147–48.5
These generalized duty and salary requirements, however, do not apply to
“teaching professionals.” 29 C.F.R. § 541.303(d). Rather, the applicable
regulations dispense with the salary requirement entirely, see id., and establish a
more specific duty test, identifying a teaching professional as an employee
The salary threshold was recently increased to “not less than $913 . . . per
week.” 29 C.F.R. § 541.600(a) (effective Dec. 1, 2016). That amendment, however,
is presently enjoined nationwide. See Nevada v. U.S. Dep’t of Labor, ‐‐‐ F. Supp. 3d
‐‐‐‐, No. 16‐cv‐00731, 2016 WL 6879615, at *9 (E.D. Tex. Nov. 22, 2016), appeal
docketed, No. 16‐41606 (5th Cir. Dec. 1, 2016).
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page11 of 25
(1) ”with a primary duty of teaching, tutoring, instructing or lecturing in the
activity of imparting knowledge,” (2) “who is employed and engaged in this
activity as a teacher in an educational establishment,” id. § 541.303(a). Plaintiffs
concede that their primary duty while employed by defendants is teaching in
order to impart knowledge, specifically, knowledge of the English language.
What they dispute is defendants’ status as qualifying “educational
DOL regulations define “educational establishment” as “an elementary or
secondary school system, an institution of higher education or other educational
institution.” Id. § 541.204(b).6 The Zoni Centers are not associated with an
elementary or secondary school, or with any institution of higher education.
Thus, to qualify for the FLSA exemption applicable to bona fide professionals,
they must be “other educational institution[s].” Id. (emphasis added).
DOL regulations do not specifically define “other educational institution.”
Instead, they state that (1) the term “includes special schools for mentally or
physically disabled or gifted children, regardless of any classification of such
schools as elementary, secondary or higher”; (2) “[f]actors relevant in
6 The parties agree that DOL regulations use the terms “other educational
institution” and “other educational establishment” interchangeably.
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determining whether post‐secondary career programs are educational
institutions include whether the school is licensed by a state agency responsible
for the state’s educational system or accredited by a nationally recognized
accrediting organization for career schools”; and (3) “for purposes of the
[teaching professional] exemption, no distinction is drawn between public and
private schools, or between those operated for profit and those that are not for
Regulatory Interpretation of “Other Educational Institution”
In this case, we address whether the Zoni Centers constitute such an
“other educational institution.” In so doing, we look to the plain language of the
regulatory text, which we consider “in light of its purpose, as stated in the
regulation’s preamble . . . as well as the purpose of the regulation’s authorizing
statute.” Halo v. Yale Health Plan, Dir. of Benefits & Records Yale Univ., 819 F.3d 42,
52 (2d Cir. 2016) (citing approvingly to Kevin M. Stack, Interpreting Regulations,
111 Mich. L. Rev. 355 (2012)).
The word “educational,” as used both in the operative regulations and in
DOL opinion letters, appears here to bear its common meaning, i.e., “of, relating
to, or concerned with education or the field of education.” Webster’s Third New
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International Dictionary (Unabridged) 723 (1986 ed.). “Education” is “the act or
process of providing with knowledge, skill, competence or us[ually] desirable
qualities of behavior or character or of being so provided esp[ecially] by a formal
course of study, instruction, or training.” See id. This comports with § 541.303,
captioned “Teachers,” which states that the FLSA’s bona fide professional
exemption applies to “any employee with a primary duty of teaching, tutoring,
instructing or lecturing in the activity of imparting knowledge . . . .” 29 C.F.R.
§ 541.303(a) (emphasis added). Whether an institution is “educational” thus
turns not upon the subject matter that is learned, but upon whether and how it is
The open‐ended nature of this definition is confirmed by the applicable
regulation, which does not explain what an “other educational institution”
means or is limited to, but only what it “includes,” 29 C.F.R. § 541.204(b)
(emphasis added). Such language indicates that the facilities discussed
thereafter—special schools for disabled or gifted children—are merely
illustrative, and not exhaustive, as to what might qualify as an “other
educational institution.” See Black’s Law Dictionary 831 (9th ed. 2009) (explaining
that “participle including typically indicates a partial list” (emphasis in original));
Webster’s Third New International Dictionary (Unabridged) 1143 (defining “include”
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as “to place, list, or rate as a part or component of a whole of a larger group,
class, or aggregate”). This conclusion is reinforced by § 541.204(b)’s next
sentence, which recognizes that “post‐secondary career programs”—entities
distinct from the aforementioned special schools—can also qualify as educational
establishments, particularly if they are state‐licensed or nationally accredited.
Applying these plain‐language considerations here, the Zoni Centers are
“other educational institution[s].” As described in plaintiffs’ amended
complaint, their primary purpose is to provide English‐language instruction to
students using prescribed books in a traditional classroom environment. Every
lesson plan must include speaking, listening, writing, and reading English, with
student progress assessed on midterm and final examinations. These allegations
confirm that plaintiffs were engaged in the transmittal of knowledge to students
in much the same way as primary and secondary school teachers, except that
plaintiffs’ students were adults, not children, and the knowledge conveyed to
them focused on a single subject, the English language. Further, as discussed by
the regulation in the context of career schools, the Zoni Centers have both
national educational accreditations and state licensure. Indeed, the latter
qualification requires that Zoni Center teachers have completed a program in
teaching English as a second language or have at least one year’s experience
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page15 of 25
teaching English as a second language, see 8 N.Y.C.R.R. § 126.10(j)(3)(iii)(a),
further indicating that the teaching of English as a second language in New York
is conducted by bona fide professionals.
The purpose of the regulation warrants no different conclusion. What
scant legislative history there is regarding 29 U.S.C. § 213(a)(1)’s bona fide
professional exemption suggests that it was premised on the intention to exempt
workers who “typically earned salaries well above the minimum wage, and . . .
were presumed to enjoy other compensatory privileges . . . setting them apart
from the nonexempt workers entitled to overtime pay.” Defining and Delimiting
the Exemptions for Executive, Administrative, Professional, Outside Sales and
Computer Employees, 69 Fed. Reg. at 22,124. Here, plaintiffs’ $16‐to‐$17 hourly
pay for their classroom work is well above the federal hourly minimum wage.
Even when plaintiffs’ earnings are attributed to the total hours worked inside
and outside the classroom, no plaintiff’s hourly rate of pay declines to less than
$10 per hour, still above the federal and state minimum wage during that period.
See 29 U.S.C. § 206(a)(1)(C) (mandating federal minimum wage of $7.25 as of July
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2009); N.Y. Lab. Law § 652(1) (raising state minimum wage to $8 per hour
effective December 31, 2013, and $8.75 effective December 31, 2014).7
Certainly, plaintiffs’ total weekly earnings are hardly munificent and much
lower than those of a new teacher employed by the New York City Board of
Education. See United Fed’n of Teachers, Salary Schedules for 2009–2018
Contract 2–5, http://www.uft.org/files/attachments/secure/teacher‐schedule‐2009‐
2018.pdf (announcing increases in minimum base salary for New York City
teachers to $45,985 as of May 1, 2013, and to $49,908 as of May 1, 2015). Also,
because the FLSA is a remedial statute intended “to remedy the evil of
overwork,” Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015)
(internal quotation marks omitted), we must limit the application of FLSA
exemptions “to those establishments plainly and unmistakably within their
terms and spirit,” Chen v. Major League Baseball Props., Inc., 798 F.3d at 81
(internal quotation marks omitted). But we need not further address the aptness
of a comparison between the wages of plaintiffs and other teachers because DOL
regulations—the enforceability of which plaintiffs do not challenge—specifically
After plaintiffs filed their amended complaint, the state minimum wage
increased to $9 effective December 31, 2015 and $11 effective December 31, 2016.
See N.Y. Lab. Law § 652(1).
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page17 of 25
exclude any salary requirement for exempt teaching professionals. See 29 C.F.R.
As for the regulatory preamble, it too has little to say about application of
the bona fide professional exemption to teachers. It highlights the DOL’s
decision to use state licensure and national accreditation as relevant factors in
deciding whether post‐secondary career programs qualify for the exemption. See
69 Fed. Reg. at 22,147. Otherwise, the preamble simply states, in response to
industry commenters, that DOL opinion letters can provide guidance in deciding
whether a particular entity constitutes an “other educational institution” for
purposes of the FLSA bona fide professional exemption. See id.; see also Barfield v.
N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 149 (2d Cir. 2008) (observing that this
court has “often relied” on such letters “for their persuasive value” as illustrating
“a body of experience and informed judgment to which courts and litigants may
properly resort for guidance” (internal quotation marks omitted)).
Our review of applicable DOL opinion letters confirms the breadth of
subject‐matter areas that may be encompassed by an “educational institution.”
For example, the DOL has concluded that the bona fide professional exemption
for teachers applies to instructional programs for automobile, diesel, collision
repair, motorcycle, and marine technicians, see Opinion Letter from Dep’t of
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Labor, Wage & Hour Div. (“Opinion Letter”), 2006 WL 3406601 (Oct. 26, 2006); to
cosmetology schools, see Opinion Letter, 2008 WL 4906284 (Oct. 1, 2008); and to
daycare providers, at least insofar as they provide “grade school curriculums,
introductory programs in kindergarten, or nursery school programs in
elementary education,” and not simply childcare, Opinion Letter, 2008 WL
4906283 (Sept. 29, 2008). While no DOL opinion letters address the status of an
English language instructor at a standalone language instruction facility, we see
no principled ground for differentiating such a facility from those discussed in
the cited opinion letters.
“Other Educational Institution” Is Not Limited to Schools for
the Disabled or Gifted, or to Post‐Secondary Career Programs
In urging the contrary conclusion, plaintiffs first assert that 29 C.F.R.
§ 541.204(b), by specifically identifying schools for “disabled or gifted children”
and “post‐secondary career programs” as “other educational institution[s],”
necessarily excludes other instructional programs from that phrase. See NLRB v.
SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (explaining “expressio unius est exclusio
alterius” canon, which suggests that expression of one or several items in
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page19 of 25
enumerated list signals intent to “exclude another left unmentioned.” (internal
quotation marks omitted)). We cannot agree.
As a preliminary matter, “[o]ther educational institution” is the third and
final category listed in the definition of an “educational establishment,” with the
prior two being elementary or secondary school systems and institutions of
higher learning. Where such a series of specifically defined disjunctive terms
ends with a generalized “other” category, that can indicate that the ultimate term
is a “catchall” provision. See, e.g., T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 164 (2d Cir. 2014) (so concluding as to phrase “or other removal of
children” in least‐restrictive‐environment provision of Individuals with
Disabilities Education Act); City of New York v. Permanent Mission of India to the
United Nations, 618 F.3d 172, 183 (2d Cir. 2010) (concluding that “other benefits”
term in definition of benefits under Foreign Missions Act not limited by
preceding specific terms that were merely “illustrative”).
That § 541.204(b) is such a catchall provision is evident from its text, which
does not state what an “other educational institution” is, or is limited to, but only
what the term “includes.” 29 C.F.R. § 541.204(b) (emphasis added). As we have
already observed, the use of that word generally indicates a partial list. See supra
Part II.C.1. Thus, “[t]he word ‘include’ . . . generally signals that entities not
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page20 of 25
specifically enumerated are not excluded.” 2A N. Singer & S. Singer, Sutherland
on Statutes and Statutory Construction § 47:25, at 444 (7th rev. ed. 2014); see
Environmental Encapsulating Corp. v. City of New York, 855 F.2d 48, 54 (2d Cir.
1988) (“We are reluctant to read the term ‘includes’ as meaning ‘is limited to.’”).
The expressio unius canon warrants no different conclusion because it requires
“identifying a series of two or more terms or things that should be understood to
go hand in hand, which is abridged in circumstances supporting a sensible
inference that the term left out must have been meant to be excluded.” Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (emphasis added). That is not so
here because special schools for the disabled or gifted are not so closely related to
post‐secondary career programs as to admit the necessary inference that all other
instructional programs were deliberately excluded from the regulation.
Neither Certificates Held by Teachers nor Earned by Students
Are Necessary for the Zoni Centers To Qualify as “Other
Educational Institution[s]” under 29 C.F.R. § 541.204(b)
Plaintiffs argue that, even if the institutions specifically enumerated in
§ 541.204(b) are not exclusive, defendant Zoni Centers do not qualify as “other
educational institution[s]” because their instructors do not possess, and their
students do not earn, certificates akin to their primary school, secondary school,
or college counterparts. Specifically, plaintiffs argue that Zoni completion
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page21 of 25
certificates are not required for a career; Zoni teachers need not themselves
possess teaching certificates, or even major in a field related to English language
instruction; and some Zoni teachers may, in fact, lack the baccalaureate degrees
required by state law.
These arguments fail because plaintiffs point to nothing in the statute or its
implementing regulations indicating that an “educational establishment” must
(1) require instructors to hold teaching certificates or (2) award students
certificates necessary for employment or educational opportunities. The need for
the latter certificate is belied by DOL’s inclusion in a non‐exhaustive list of
“[e]xempt teachers” persons teaching nursery school, home economics, and vocal
or instrumental music—areas where a certificate of course completion would not
be a necessary prerequisite for employment or academic advancement. See 29
C.F.R. § 541.303(b). Even if facility with English is not a prerequisite for
particular jobs, plaintiffs cannot dispute that English fluency is a gateway for
many more employment opportunities in the United States. See, e.g., Jennifer
Cheeseman Day & Hyon B. Shin, U.S. Census Bureau, How Does Ability To Speak
English Affect Earnings? 6–8, http://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf (conducting study using 2000
Census data and concluding that greater English‐language proficiency correlated
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page22 of 25
with higher earnings in United States labor market). As for teacher certification,
while “an elementary or secondary [school] teacher’s certificate [is] a clear means
of identifying the individuals contemplated as being within the scope of the
exemption for teaching professionals,” § 541.303(c), the same regulation observes
that “a teacher’s certificate is not generally necessary for employment in
institutions of higher education or other educational establishments,” and that “a
teacher who is not certified may be considered for exemption,” id. DOL opinion
letters make equally plain that “there is no minimum educational or academic
degree requirement for bona fide teaching professionals in educational
institutions.” Opinion Letter, 2008 WL 4906281 (Sept. 26, 2008); see Opinion
Letter, 2008 WL 4906284 (Oct. 1, 2008) (“[U]nlike the learned professional
exemption, there is no requirement that exempt teachers possess an advanced
degree in a field of science or learning.”); id. (stating that cosmetology instructors
are exempt teachers notwithstanding that they “do not possess teaching
Further Discovery Was Not Required
Finally, plaintiffs submit that dismissal was premature insofar as the Zoni
Centers and/or certain of its teacher‐employees may not be in full compliance
with their licensure and accreditation requirements. We are not persuaded
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page23 of 25
because that factual question does not bear on the legal issue of whether the Zoni
Centers are the type of institution DOL regulations deem “educational.” DOL’s
regulations speak only of whether the establishment has received licensure or
accreditation, not whether it is actually compliant therewith. See 29 C.F.R.
Other Factors Bearing on Defendants’ Educational Status
In identifying the Zoni Centers here as educational establishments, whose
teachers are bona fide professionals exempt from FLSA minimum wage and
overtime requirements, we do not conclude that the factors that decide this case
are the only ones relevant to determining whether an establishment is
“educational” under 29 C.F.R. § 541.204(b), or whether an employee is a
“teacher,” see id. § 541.303(a)–(b). Specifically, we do not disapprove
consideration of any other factors relied on by the district court. We hold only
that consideration of all eight factors identified by the district court is not
compelled in every case by the plain language of the relevant regulations.
Where, as here, there is no dispute that the plaintiffs are teachers employed by
defendants “with a primary duty of teaching” in order to “impart knowledge,”
the pleadings themselves established that plaintiffs “engaged in this activity as
. . . teacher[s] in an educational establishment,” id. § 541.303(a), i.e., an
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page24 of 25
establishment whose primary purpose was to convey knowledge. Other
evidence, subject to judicial notice in this case, such as defendants’ state licensure
and national accreditation, and state requirements for professionals teaching
English as a second language, only reinforces that conclusion.
Accordingly, we conclude that because the FLSA bona fide professional
exemption applies here, plaintiffs cannot state plausible FLSA claims for
minimum wage and overtime payments. We affirm the district court’s judgment
To summarize, we conclude as follows:
1. Defendants’ language‐instruction facilities are “other educational
institution[s]” under 29 C.F.R. § 541.204(b) because plaintiffs’
complaint demonstrates that their primary purpose is to impart
knowledge, specifically, knowledge of the English language.
2. This status is further supported by defendants’ possession of state
licensure and recognized national accreditation.
defendants’ entitlement to the FLSA’s bona fide professional
exemption applicable to teachers, see 29 U.S.C. § 213(a)(1); 29 C.F.R.
Case 16-1689, Document 58-1, 05/26/2017, 2044091, Page25 of 25
§ 541.303(a), and prevent plaintiffs from pleading plausible
minimum wage and overtime claims. Accordingly, the district court
correctly dismissed these federal claims with prejudice and related
state‐law claims without prejudice to refiling in state court.
The challenged district court judgment is, therefore, AFFIRMED.
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