Vision Payroll

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-6. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, an employer requested an opinion as to whether its pilots are exempt under the learned professional exemption. The employer has eight full-time pilots to fly its Gulf Stream and Citation-Excel jet aircraft and its medium Sikorski S76A helicopter. The pilots transport the Company’s executives, customers, and guests on an as needed basis. “The Chief Pilot and all of the Captains (pilots ## 1 – 7) hold FAA Airline Transport Pilot Certifications; all of the pilots (including the First Officer, pilot #8) hold commercial pilot licenses with instrument and multi-engine ratings and each one meets or exceeds the FAA’s requirements to qualify as a pilot-in-command.”

The DOL reaffirmed that since aviation isn’t “a field of science or learning” and that pilots do not acquire their knowledge through a “prolonged course of specialized intellectual instruction”, they are not eligible for the learned professional exemption.

For pilots and co-pilots of airplanes and rotorcraft with an FAA Airline Transport Certificate or Commercial Certificate who are paid a salary of at least $455 per week, the DOL takes a “position of non-enforcement”. This position also requires that the pilots or co-pilots be engaged as follows:

1. Flying of aircraft as business or company pilots;
2. Aerial mineral exploration;
3. Aerial mapping and photography;
4. Aerial forest fire protection;
5. Aerial meteorological research;
6. Test flights of aircraft in connection with engineering, production, or sale;
7. Aerial logging, fire suppression, forest fertilizing, forest seeding, forest spraying, and related activities involving precision flying over mountainous forest areas;
8. Flying activities in connection with transmission tower construction, transmission line construction, transportation of completed structures with precision setting of footings, concrete pouring; or
9. Aerial construction of sections of oil drilling rigs and pipe-lines, and ski-lift and fire lookout constructions.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-5. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, the DOL confirmed that lifeguards employed for less than seven months of the year are exempt from the minimum wage and overtime requirements of the FLSA. The lifeguards in question were employed by a town “to protect swimmers at the local beach.”

Since employees of an “establishment that is an amusement or recreation establishment, organized camp, or religious or non-profit conference center” that is not open more than seven months in a calendar year are exempt from the FLSA, a key factor was the definition of “establishment”. The Opinion Letter also confirmed that an amusement or recreational establishment supported by tax revenues cannot qualify under a second test involving the seasonality of the revenue collected.

The Opinion Letter clarified that “the term ‘establishment’ refers to a distinct physical place of business rather than to an entire business or enterprise, which may include several separate places of business.” Also, the fact that some employees may work more than seven months in a year does not deny the exemption as long as the beach is not open for protected swimming for more than seven months.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-4. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, the DOL concluded that a convention and visitors services sales manager whose “primary duty is marketing and promotional work to enhance the city as a destination for conventions and visitors” qualified for the administrative exemption to the FLSA. In addition to a salary of at least $455 per week, to qualify for the administrative exemption an employee must perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers and a primary component of which involves the exercise of independent judgment and discretion about matters of significance.

The employee in question was primarily involved in marketing, which is considered office or non-manual work. This is true even though the employee performed some support and clerical duties, since this non-exempt work was not the employee’s primary duty. Furthermore, the employee exercised independent judgment and discretion since the employee performed important duties on matters of significant economic import to the city with minimal supervision.

The DOL did not address whether the employee qualified under the professional exemption since the matter was moot.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-3. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, an employer requested an opinion as to whether its method of calculating retroactive overtime pay was compliant with the FLSA. After a reorganization at the employer, certain formerly exempt employees no longer performed the duties that qualified them as exempt. These employees had been paid a salary even after they had become non-exempt employees. This salary might have been reported on their bi-weekly pay stubs as 100 hours worked at $18.25 per hour for a salary of $1,825.00 regardless of the number of actual hours worked. This was due to an understanding that these employees would generally work at least fifty hours each work week and the limitations of the employer’s payroll department and software.

The employer’s method for calculating overtime for the newly non-exempt employees was as follows:

1. Determine the actual hours worked by an employee for a given week.
2. Calculate the equivalent of the employee’s weekly salary by dividing the bi-weekly salary by two.
3. Divide that weekly salary by the number of hours worked in that week.
4. Divide that resulting hourly rate equivalent by two in order to determine the hourly overtime premium.
5. Multiply that overtime premium rate by the overtime hours worked in that week.

In all cases, the resulting hourly rate calculated exceeded the applicable minimum wage.

The Opinion Letter stated that the fact the payroll software displayed an hourly rate on the check did not mean that the employer was required to pay overtime based on that rate; therefore, the employer’s method of calculating overtime was in compliance with the FLSA.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-2. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, the DOL concluded that an employer “may require exempt employees to use accrued vacation time during a plant shutdown of less than a workweek without violating the salary basis test and thereby affecting their exempt status” under the FLSA.

There is no requirement under the FLSA to provide vacation to employees. Employers may require employees to use vacation time or leave time “whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary.” Therefore, so long as the employees receive their guaranteed salary there is no impact on their exempt status. Exempt employees without available time for vacation or leave must still receive their full salary “for any absence(s) occasioned by the employer or the operating requirements of the business.”

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-1. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, the DOL concluded that employee attendance at State mandated training programs by child care center workers does not result in hours worked under the FLSA. The DOL lists four criteria that must be met for the time not to be counted as hours worked:

1. Attendance is outside of the employee’s regular working hours;
2. Attendance is in fact voluntary;
3. The course, lecture, or meeting is not directly related to the employee’s job; and
4. The employee does not perform any productive work during such attendance.

In this case, the employer offered the training courses after-hours, thereby meeting criterion 1. Employees could choose to attend or not, thus meeting criterion 2. The training qualifies under an exception for criterion 3 that states that “where the training is for the benefit of the employee and corresponds to courses offered by independent bona fide institutions of learning,” the training is not considered directly related to the employee’s job. As long as employees do not perform productive work during the training, criterion 4 would be met.

The DOL concludes that such training does not qualify as hours worked under the FLSA unless the State does not require the employer to provide the training.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-19. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

This Opinion Letter confirms that exempt store managers do not lose their exempt status while training to become area sales managers. The company chooses store managers who are top performers to enter a seven-week training program to become area sales managers. Eight to ten store managers report to one area sales manager. At the beginning of the training period, the trainee performs little to no exempt work. As the program progresses, the trainee gradually assumes most to all of the responsibilities of the trainer. Successful trainees return to their store manager position to await an opening and a promotion. Unsuccessful trainees just return to store manager duties.

For this letter, the DOL assumed that both the store manager and area sales manger positions were exempt. Even though for some weeks of the training, the trainees may have performed mostly non-exempt work, the executive exemption need not be met or tested on a week-by-week basis. Since the primary duty of the trainees remained as store managers and since they did not perform “work that would otherwise be performed by nonexempt workers”, there is no reason for the trainees to lose their exempt status during the training program.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-18. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

This Opinion Letter is a response to a request to treat itamae-sushi and teppanyaki chefs as tipped employees and thus allow them to participate in tip pools. Itamae-sushi chefs work in the bar area and prepare sushi that they serve to customers. Teppanyaki chefs prepare meals at customer tables on a teppan table and also serve the meals to the customers. Along with the itamae-sushi and teppanyaki chefs, servers, bussers, bartenders, and counter workers participate in the tip polls, while cooks and dishwashers do not. All participants regularly receive more than $30 per month in tips.

Itamae-sushi and teppanyaki chefs are more akin to counter workers who cook and serve food to customers than to typical chefs. Counter workers are allowed to share in tip pools. Since “any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips” is a tipped employee, itamae-sushi and teppanyaki chefs may both participate in the tip polls and be considered tipped employees.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-17. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

This Opinion Letter clarifies that Certified Occupational Therapist Assistants (COTAs) employed by a school district do not qualify as either exempt professionals or exempt administrative employees in educational establishments. The COTAs were requesting to be reclassified from nonexempt paraprofessionals to exempt professional employees.

The educational requirement for COTAs “is that which is sufficient to obtain certification by the state Board of Occupational Therapy Examiners.” This requires “at least 60 academic semester credits or the equivalent from an accredited institution of higher education.” The DOL ruled that completion of only “60 semester hours does not qualify as a ‘prolonged course of specialized intellectual instruction.’” Additionally, COTAs do not meet the standards to qualify as registered or certified medical technologists.

Also, since COTAs primary duty is related to the health of the students, they do not qualify under the administrative exemption for employees in educational establishments.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-16. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

This Opinion Letter considers whether a Latino Victim Specialist (LVS) may also volunteer as a Reserve Police Officer (RPO) for the same public agency. As an LVS, the employee provides “counseling and other assistance to, among others, victims of crime, families experiencing domestic violence, citizens with mental or psychological difficulties who become involved in law enforcement matters, homeless persons, and parents having difficulties with delinquent children.” Since these duties are not the duties of law enforcement personnel, the employee is not considered to provide the “same type of services” when volunteering as when performing regular paid duties.

A second consideration is that volunteers cannot receive compensation, but may receive a combination of “expenses, reasonable benefits, or a nominal fee.” In certain situations when it needs extra police help for special assignments, the Police Department requests that the RPOs work and pays the RPOs the equivalent of entry-level pay for a regular Police Officer. Since this payment is clearly more than the DOL established standard of twenty percent of pay for a comparable position, this pay is more than nominal. There is no need to combine the hours worked as an LVS with the hours worked as an RPO, however, to determine if the employee is entitled to overtime pay for a particular pay period. Employees who “work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment” do not need to have their hours combined for overtime purposes under the FLSA.

Lastly, even though the LVS may not volunteer during weeks in which the individual receives compensation as an RPO, those weeks are not a part of regular duties as an RPO. Therefore, the LVS may volunteer as an RPO during weeks in which the Police Department does not request compensated RPO service. The Police Department may “terminate the LVS’s occasional and sporadic part-time employment as an RPO at the conclusion of such special assignments and return him or her to volunteer RPO status during other workweeks in which no compensated work is performed” so long as it is not done with intent to circumvent the FLSA.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.