Payment of Staff during Protected Time Periods

November 22, 2021 • Jennifer Barton

Payment of Staff during Protected Time Periods

Schools experiencing staffing shortages must remember to follow required rules and guidelines regarding planning periods and duty-free lunch entitlements for staff.

Planning period

According to Texas Education Code (TEC) § 21.404, each classroom teacher is entitled to at least 450 minutes within each two-week period for instructional preparation, including parent-teacher conferences, evaluating students' work, and planning.  A planning period defined under this section may not be less than 45 minutes within the instructional day, and a teacher may not be required to complete any other activity during this period that isn’t related to planning and preparation.

Statute defines a classroom teacher as an individual employed by a school district as a certified educator who teaches in an academic instructional setting or a career and technology instructional setting, not less than an average of four hours each day. Teacher aides and full-time administrators aren’t classroom teachers.

The statutory required planning periods must be scheduled within the instructional day. The instructional day has been defined as the period when students are in the classroom for instruction. As a result, the planning period can’t be scheduled before instruction begins or after students are released.

The teacher is responsible for deciding how to use the planning and prep time as long as it relates to instruction. While the time is duty-free, a teacher’s time should be spent on activities that meet an instructional need, including parent-teacher conferencing.

Voluntary relinquishing of planning period

The commissioner has held that TEC § 21.404 prohibits a district from assigning teaching duties during a teacher’s planning period, even if the teacher agrees to the duties. The commissioner reasoned that a district can’t contract for teaching duties in exchange for monetary compensation outside of a Chapter 21 contract (Bledsoe v. Huntington Indep. Sch. Distr., Tex. Comm’r of Educ. Decision No. 033-R10-1103 (Sept. 18, 2014)).

A teacher is prohibited from assuming teaching duties during the planning period even if he or she volunteers to do so with pay. While schools sometimes ask a teacher to take on an extra class or period due to staffing shortages or other seemingly viable reasons, this isn’t allowable. This includes substituting. An exception to the above rule regarding teaching activities applies where a district provides more than the statutorily required time for planning periods. For example, some districts provide 600, 750, or 900 minutes of planning time in each two-week period. The commissioner has held that Section 21.404 would not be violated if a teacher gave up surplus planning time to teach a class.

Remember if a district assigns extra duties to the teacher for additional compensation and then decides to remove these duties, the district should notify the teacher before the penalty-free resignation date (i.e., 45 days before the first day of instruction) that the salary will be reduced, out of an abundance of caution.

Duty-free lunch

TEC §21.405(a) entitles teachers and librarians to at least a 30-minute lunch period free from all duties and responsibilities connected with the instruction and supervision of students. A school district may require a classroom teacher or librarian to supervise students during lunch due to a personnel shortage, extreme economic conditions, or an unavoidable or unforeseen circumstance. However, this assignment must be limited to one day in any school week.

Entitlement to a lunch break only applies to teachers and librarians. However, for nonexempt employees, bona fide meal periods (e.g., 30 minutes or more) generally need not be compensated as work time. A nonexempt employee must be completely relieved from duty during the 30 minutes for the time to be unpaid. If assigned to supervise students during the lunch period, the employee must be compensated.

District responsibilities

District leaders must abide by the rules for planning period requirements and duty-free lunch entitlements for teachers, and they must also be mindful of other designated break times provided to non-teaching employees such as meal breaks. While it’s important to ensure supervision and instruction are provided to students throughout the day, districts must be in compliance with statute when finding staffing solutions for schools.

More guidance on teacher planning periods is available in the TASB School Law eSource post Frequently Asked Questions Regarding Teacher Planning Periods, as well as past HRX articles Are Teacher Planning Periods Untouchable?, Assigning Extra Classes during Planning Periods, and Duty-free Lunch Entitlement


Jennifer Barton is a compensation and HR consultant at TASB HR Services. Send Jennifer an email at jennifer.barton@tasb.org.


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Tagged: Compensation, "Educator contracts", "Teacher contracts"