Co-op Teachers: Employees or Contractors?

Are your homeschool co-op teachers contractors or employees?

In March 2024, a portion of the federal rules governing the Fair Labor Standards Act (FLSA) changed. The purpose of this new rule is to help businesses and organizations analyze who is an employee versus who is an independent contractor. The Department of Labor has a website for “small entities”, including the all-important question of “to whom does the FLSA apply?” (Kudos to the editors at the federal government for proper grammar!)

It is beyond the scope of this short article to answer the question of whether the FLSA applies to your homeschool co-op; if you have questions about that, you should contact a local attorney or research the Department’s website. However, if it does apply to your homeschool group, then here are some tips to guide you through the issue of employees versus independent contractors. (You could also check out this chapter from the Field Operations Handbook (FOH) that mentions “employment relationship required for FLSA to apply.”)

Previous guidance from the Department of Labor states, “There is no single rule for determining whether an individual is an independent contractor or an employee for purposes of the FLSA.” The Department’s new rule has six factors to help you determine whether the homeschool dad teaching geography at your co-op is an employee or independent contractor. As we look at these factors, I’ve adapted some of the questions on the Department’s website to apply to homeschoolers, and I’ve put in parentheses which type of worker that question tends to indicate.

1. Opportunity for Profit or Loss Depending on Managerial Skill: Is the worker determining or meaningfully negotiating his pay (contractor)? Is the math teacher putting up ads for her other math classes on her own Facebook page (contractor)?
2. Investments by the Worker and the Potential Employer: Who is buying the books and materials for the class? If it is a science lab, does the teacher buy the microscope, slides, and lab PowerPoints (contractor)? Does the co-op provide all the costumes for the play (employee)? Or is that the job of the paid producer (contractor)?
3. Degree of Permanence of the Work Relationship: Has the history teacher taught this same class every year at your co-op but nowhere else (employee)? Does your physics instructor take time off from her job teaching at the local community college to share her knowledge with your students (contractor)?

Factors 4 and 5 make most homeschool co-op teachers employees rather than contractors, in my experience:

1. Nature and Degree of Control: Does your co-op set the schedule for your teachers (employee)? Is someone in your co-op responsible for evaluating how the instructor performed during class (employee)? Do you have the right to discipline the teacher if they are not teaching in the way your co-op wants (employee)? Does your co-op set the cost for the class (employee)?
2. Extent to Which the Work Performed as an Integral Part of the Potential Employer’s Business: If your paid instructors didn’t show up to your co-op, would your co-op keep on going? If so, the instructors may be independent contractors. In the co-ops I have been involved in, both as a student and as a parent, there were almost no paid instructors—so the co-op could function just fine without them. However, many of the co-ops that I talk to daily through my work at HSLDA exist only for the purpose of providing space for the instructors. In fact, in these instances, “the work performed by the instructor is critical, necessary, and central to the co-op’s business”, and thus the co-op teachers might be employees.
3. Skill and Initiative: Hopefully, all your instructors bring specialized skills to their work at your co-op. However, just because a math tutor can run rings around us lawyers when it comes to differential equations does not automatically make the math tutor a contractor. The Department of Labor says that “it is the worker’s use of those specialized skills in connection with a business-like initiative that indicates that the worker is an independent contractor.” Does your art tutor run her own studio (contractor)? Is the astronomy teacher passing out business cards to the parents to sign up for his in-person night classes (contractor)?