Can a Mississippi school district pay teacher's assistants their 10-month wages over 12 months so they keep getting paychecks in the summer?
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This page answers the general question as of 2022. Ezel answers yours: what it means for your facts, under current Mississippi law, with citations.
Plain-English summary
Richton Municipal Separate School District employs teacher's assistants on 10-month contracts paid hourly. Some of them asked the district to hold back part of each monthly paycheck and release it during June and July, so they would keep getting paid through the summer. The board's attorney asked the AG whether the district could (1) hold money in escrow that way, and (2) move teacher's assistants from hourly to salaried, paid equal installments over 12 months instead of 10.
The AG cleared both ideas, with caveats.
On hours and pay frequency, §§ 37-9-39 and 37-151-103(1) set the framework. The first requires monthly payroll for licensed employees and allows monthly or bimonthly for nonlicensed. The second sets up the salary calculation. Section 37-9-39 also says payment must be in equal installments starting in the first month of employment, but it does not specify salary versus hourly and does not specify how many months payment must be spread over. The fiscal-year statutes (§§ 37-61-1 and 37-61-3) prohibit spending current-year appropriations in the next fiscal year, with one critical exception: salaries for teachers and other school employees that are payable in 12 monthly installments may be paid out after the fiscal-year close from amounts on hand at year end.
Putting those together, the AG saw no prohibition on paying teacher's assistants on either an hourly or salary basis, and no prohibition on stretching the pay over 12 monthly installments instead of 10.
The AG drew two boundaries the opinion did not cross. First, it noted assistant teacher pay is addressed and governed by the Fair Labor Standards Act, and under § 7-5-25 the AG opines only on state law, not federal law. Second, the AG does not interpret contracts. So the opinion does not say what the existing assistant teacher contracts permit, does not analyze any FLSA requirements, and states it "does not consider any potentially relevant tax implications."
The AG sent the escrow mechanics question to the State Auditor's Office. Whether the district can literally withhold a portion of each paycheck and reissue it later in the year, versus simply paying the same total over a 12-month schedule, is an audit-controls question, not a state-law question. The 12-month spread is allowed; the implementation has to satisfy the Auditor.
What this means for you
If you are a Mississippi school district administrator
You can offer teacher's assistants a 12-month pay schedule to smooth out their summer income. Two operational choices: (a) build it as a true 12-month salaried structure, or (b) keep them hourly and spread the same total compensation across 12 monthly installments.
Note that the opinion is limited to state law. It states it does not analyze federal law, including the FLSA, and does not consider tax implications, so those would need separate review.
If you are looking at a literal escrow (withhold-and-release) structure rather than a recalibrated annual schedule, the opinion directs that questions regarding escrow be addressed to the Mississippi Auditor's Office.
If you are a teacher's assistant on a 10-month contract
Under the opinion, a 12-month pay structure is permissible if your district adopts it. The total annual compensation does not change; the wages for hours worked over 10 months would be paid in 12 equal monthly installments, so paychecks continue into June and July. Whether your district offers this is up to the district.
If you are a school board member voting on a payroll change
The opinion provides the state-law clearance only. It expressly does not analyze federal law (it notes the FLSA governs assistant teacher pay) or tax implications, and it directs escrow-mechanics questions to the State Auditor's Office. Those reviews would need to happen outside this opinion.
If you are a school district attorney or HR director
Treat the opinion as a state-law clearance only. The opinion itself states it does not interpret the assistant teacher contracts, does not analyze the FLSA or other federal law, and does not consider tax implications, and it sends escrow-mechanics questions to the State Auditor's Office.
If you are a State Auditor field examiner
The AG explicitly bounced the escrow mechanics to your office. The 12-month pay structure for 10-month employees is allowed by state law; the underlying accounting question is which fund holds the deferred dollars and how the carry-over is documented. The fiscal-year exception in § 37-61-3 lets the district pay from prior-year amounts on hand for these specific salaries.
Common questions
Q: Can the school district offer this only to some teacher's assistants and not others?
A: The opinion finds no state-law prohibition on paying teacher's assistants over 12 months, but it does not address who must be offered the option or any federal employment-law or contract questions, which it left outside its scope.
Q: Does this also apply to teachers (not just assistants)?
A: Yes. The AG's reasoning relies on §§ 37-9-39 and 37-61-3, which cover teachers and other school employees. The Adams (2003) opinion the AG cited reached the same conclusion for licensed and nonlicensed school employees generally.
Q: Does FLSA require teacher's assistants to be paid hourly?
A: The AG declined to answer that. The opinion notes assistant teacher pay is governed by the FLSA and that the AG does not analyze federal law, so it expresses no view on FLSA classification.
Q: What about tax withholding on the smaller monthly checks?
A: The opinion does not address taxes. It expressly states it "does not consider any potentially relevant tax implications," so a tax question would need separate advice.
Q: Does the State Auditor have to approve the structure before we adopt it?
A: The AG did not require pre-approval. But the AG explicitly directed escrow mechanics questions to the Auditor. If your structure looks like a literal escrow, get the Auditor's view in writing before launch. If it is a clean 12-month payroll spread, your usual fiscal-year and audit controls apply.
Q: What if our existing assistant contracts say "10-month pay schedule"?
A: The AG declined to interpret the contracts. Contract language controls between you and the employee. Amend the contract before changing the pay structure.
Q: Can the district pay June and July from current-year funds?
A: The opinion relies on § 37-61-3, which it quotes as not prohibiting "the payment of salaries of... teachers and other school employees whose salaries are payable in twelve (12) monthly installments after the close of the fiscal year from amounts on hand for such purpose at the end of the fiscal year." That is the statutory hook the opinion identifies for paying the summer installments.
Background and statutory framework
§ 37-9-39 sets payroll frequency for school employees. Licensed employees: monthly. Nonlicensed: monthly or bimonthly. Payment must be in equal installments beginning in the first month of employment, regardless of how many days the employee worked in any particular month. The statute does not require a specific number of installments per year and does not require a specific basis (salary versus hourly).
§ 37-151-103(1) ties into the Mississippi Adequate Education Program funding formula, which calculates the statutorily required minimum salary for instructional positions. The district must pay at least that minimum but can structure how the payments flow.
§§ 37-61-1 and 37-61-3 set the school fiscal year as July 1 through June 30 and prohibit spending appropriated funds outside the year of appropriation. § 37-61-3 contains the carve-out: it does not prohibit "the payment of salaries of . . . teachers and other school employees whose salaries are payable in twelve (12) monthly installments after the close of the fiscal year from amounts on hand for such purpose at the end of the fiscal year." This is the statutory hook that allows the 12-month structure to survive year-end.
§ 7-5-25 limits the AG to questions of state law. The opinion states it does not interpret contracts and does not analyze federal law, noting that assistant teacher pay is governed by the FLSA, and that it does not consider tax implications.
The AG previously addressed the same issue in MS AG Op., Adams (Mar. 14, 2003), concluding that licensed and nonlicensed school employees may elect to receive salary and wage payments over a twelve-month year. The Reed opinion confirms and extends that conclusion to teacher's assistants.
Citations
- Miss. Code Ann. § 37-9-39 (school employee payroll frequency)
- Miss. Code Ann. § 37-151-103(1) (school employee compensation under MAEP)
- Miss. Code Ann. § 37-61-1 (school fiscal year)
- Miss. Code Ann. § 37-61-3 (fiscal year spending restriction with 12-month salary exception)
- Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
- MS AG Op., Adams (Mar. 14, 2003) (12-month payment of school employees)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/12/T.Reed-December-5-2022-Teachers-Assistants-Pay-Schedule.pdf
Original opinion text
December 5, 2022
T. Michael Reed, Esq.
School Board Attorney
Richton Municipal Separate School District
Post Office Box 0081
Hattiesburg, Mississippi 39403
Re:
Teacher's Assistants' Pay Schedule
Dear Mr. Reed:
The Office of the Attorney General has received your request for an official opinion.
Background
You provide in your request that some teacher's assistants employed by the Richton Municipal
Separate School District have requested that a portion of their pay be withheld each month so that
they may continue to be paid during the summer months. The teacher's assistants are employed on
a 10-month contract and paid on an hourly basis, presuming a 40-hour work week, in the amount
that correlates to the statutorily required salary. They are not asking to be paid for work not
performed but are asking that the school district, in effect, "escrow" a portion of their paycheck
each month and pay them in June and July of each year when they would otherwise not receive a
paycheck.
Questions Presented
- Can the School Board grant the request of the teacher's assistants and withhold a portion
of their pay in escrow so that they might continue to draw a paycheck during the summer
(June and July)? - Can the School Board pay teacher's assistants on a salary basis rather than an hourly basis?
If so, can the salary be paid over 12 months versus the 10 months the teacher's assistants
actually work?
Brief Response - So long as the requirements of Mississippi Code Annotated Sections 37-9-39 and 37-151-103(1), which provide the manner for paying teacher's assistants, are met, we find no
statutory prohibition against paying assistant teachers for hours worked in twelve monthly
installments to include June and July. Any questions regarding escrow should be directed
to the Mississippi Auditor's Office. - Sections 37-9-39 and 37-151-103(1) provide the manner in which teacher's assistants are
to be paid. We find no statutory prohibition against teacher's assistants being paid their
equal installments on a salary basis over twelve months.
Applicable Law and Discussion
As an initial matter, you mention in your request that the teacher's assistants are employed on
contract. Also, though not mentioned in your request, this office is aware that assistant teacher pay
is addressed and governed by the Fair Labor Standards Act. Pursuant to Section 7-5-25, the
Attorney General is authorized to issue official opinions on questions of state law only.
Accordingly, this office does not issue official opinions that either require the interpretation of
contracts or an analysis of federal law. See, e.g., MS AG Op., Welch at 1 (June 23, 2021) ("[W]e
cannot by official opinion interpret the terms or provisions of an agreement or contract or infer
facts that may be relevant to our opinion."); MS AG Op., Berry at 1 (Feb. 10, 2014) ("Our office
does not opine on federal law issues or questions of fact, and we restrict our opinions to questions
of state law."). Therefore, the following opinion answers your questions only to the extent that
state law applies and does not consider or infer facts about any relevant contract provisions or
consider any implications or requirements of relevant federal law including the Fair Labor
Standards Act. This opinion also does not consider any potentially relevant tax implications.
Section 37-9-39 governs payment times for school district employees and, consistent with the
provisions of Section 37-151-103(1), requires school districts to process a monthly payroll for
licensed employees and allows the processing of either a monthly or bimonthly payroll for
nonlicensed employees. Additionally, Section 37-9-39 requires that payment be made in equal
installments beginning in the first month of employment, regardless of the number of days worked
in any particular month, but it does not specify salary or hourly payments, nor does it specify over
how many months the employees may or must be paid.
Pursuant to Section 37-61-1, the fiscal and scholastic years run from July 1 through June 30 each
year, and Section 37-61-3 generally prohibits the expenditure of appropriated funds outside of the
fiscal year in which the funds are appropriated. However, Section 37-61-3 specifically states that
it does not "prohibit the payment of salaries of . . . teachers and other school employees whose
salaries are payable in twelve (12) monthly installments after the close of the fiscal year from
amounts on hand for such purpose at the end of the fiscal year."
Relying on Section 37-7-39, we have previously opined that licensed and nonlicensed school
employees may elect to receive salary and wage payments over a twelve-month year. See MS AG
Op., Adams at *1 (Mar. 14, 2003). Accordingly, and since Section 37-61-3 contemplates that
teachers and other employees may be paid salaries in twelve (12) monthly installments, it remains
the opinion of this office that so long as the school district complies with the requirements of
Sections 37-9-39 and 37-151-103(1) in paying assistant teachers for hours worked, we find no
statutory prohibition against paying assistant teachers in equal installments on a salary basis over
a twelve-month period.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:
/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General
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