Can a Mississippi school district pay teacher's assistants their 10-month wages over 12 months so they keep getting paychecks in the summer?

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, the Fair Labor Standards Act governs assistant teacher pay, and the AG by long-standing practice does not opine on federal law. Second, the AG does not interpret contracts. So the opinion does not say what the existing assistant teacher contracts permit, and it does not address FLSA classification questions (such as whether moving someone from hourly to salaried changes their overtime exposure under federal law).

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.

Either way, document the change in writing for each affected employee, run the new structure past your district auditor, and verify FLSA classification with employment counsel. The AG explicitly did not address overtime exposure or federal FLSA reclassification consequences.

If you are looking at a literal escrow (withhold-and-release) structure rather than a recalibrated annual schedule, get the State Auditor's clearance first. The AG punted that piece to them.

If you are a teacher's assistant on a 10-month contract

A 12-month pay structure is on the table if your district adopts it. Ask your district HR whether they offer an election. The total annual compensation does not change; you would receive 12 smaller monthly payments instead of 10 larger ones. Compare the cash-flow impact: 10 larger checks (with summers unpaid) versus 12 smaller checks (with steady summer income). For workers who rely on summer income for major expenses or to subsidize a second job, the 12-month structure is often more stable.

Do not assume tax withholding is identical: smaller monthly checks may put you in a different withholding tier each month even though annual taxes are the same. Talk to your tax preparer if the structure changes.

If you are a school board member voting on a payroll change

The state-law clearance is here. The federal-law clearance is not. Before you adopt a district-wide policy, get a written opinion from employment counsel covering FLSA classification (salaried versus hourly), overtime, and any deferred-compensation tax consequences under Internal Revenue Code § 409A. Confirm that the district's payroll software and bond/insurance bonding cover the new structure.

Specifically pay attention to the State Auditor's view if you are using a withholding-then-release model. The AG sent that question to the Auditor; do not assume silence equals approval.

If you are a school district attorney or HR director

Treat this opinion as a state-law clearance, nothing more. You still need a federal-law analysis covering:
- FLSA classification (29 U.S.C. § 213(a)(1) executive/administrative exemption analysis if you are moving to salaried).
- Overtime impact (the FLSA salary basis test and FLSA Salary Threshold updates).
- Deferred compensation under IRC § 409A. A pure 12-month spread of currently earned wages may or may not be deferred compensation depending on structure; specific guidance from a tax attorney is appropriate.

The State Auditor will care about how the dollars move through accounts. The AG flagged escrow as their question.

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: Yes, in principle. The state law allows it. District policy and any collective bargaining or contract terms control who gets the option. Check for non-discrimination and uniform-treatment concerns under federal employment law before treating identically-situated employees differently.

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: That is a federal-law question the AG declined to answer. FLSA classification depends on the duties performed and the salary basis test, not just the title. Get specific employment-law advice before reclassifying.

Q: What about tax withholding on the smaller monthly checks?
A: Federal income tax withholding adjusts to the actual paycheck amount each month. Annual tax liability stays the same. Some employees benefit from smaller monthly tax withholdings; others find the annual reconciliation confusing. The district payroll system handles the calculations automatically; communicate the change clearly so employees know what to expect.

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: § 37-61-3 lets the district pay teacher and school-employee salaries from prior-year amounts on hand after the close of the fiscal year, when those salaries are payable in 12 monthly installments. So the June and July checks for FY 2023 work are paid from FY 2023 funds, even though they hit the bank in FY 2024.

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. Federal law (FLSA, FICA, FUTA, IRC § 409A) and contract interpretation are outside official opinion authority.

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
1. 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)?
2. 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
1. 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.
2. 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