Vision Payroll

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-15. 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 reviews a plan by a fire protection district to provide monthly stipends to its volunteers. Apparently, the plan provides for the following stipends for volunteers who perform twenty-four or more hours of service per month:

Volunteers cannot receive compensation, but may receive a combination of “expenses, reasonable benefits, or a nominal fee.” Generally, the DOL finds that a fee is nominal “as long as it does not exceed 20% of the amount that otherwise would be required to hire a permanent employee for the same services.” Since the district did not provide the DOL with market data to perform the 20% test, the DOL was unable to make the determination whether or not the fee was nominal. The district itself could make that determination, however, upon gathering the appropriate economic data.

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 FLSA2008-14. 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 examines whether under the FLSA paid firefighters may also volunteer their services for the private, nonprofit volunteer fire department (VFD) for which they work. According to the DOL, the FLSA “permits public sector employees to volunteer their services to their employing public agency, assuming they provide their services for civic, charitable, or humanitarian reasons and there is no coercion or undue pressure on the employee, so long as they do not volunteer to provide the same type of services for which they are employed.” Although paid office employees of the VFD may volunteer as firefighters during their off-duty hours, paid firefighters may only volunteer as firefighters so long as their volunteer hours are added to the regular hours for the purpose of determining if these firefighters received the required minimum wage and overtime pay. This is true even if there is no evidence of coercion, since employees are not allowed to waive their rights under 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 FLSA2008-13. 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 examines whether under the FLSA paid emergency medical technicians (EMTs) may also volunteer their services for the local volunteer emergency crew (crew). The crew in question started providing emergency services in the county in 1970. A tax-exempt volunteer organization, it maintains it own by-laws and policies, elects a Board of Trustees made up of the general public, and maintains virtually complete control over its volunteers. In 2002, the county hired a Director of Emergency Services and five EMTs. The question is whether the paid EMTs may continue to volunteer for the crew under the FLSA.

The DOL considered both the FLSA and the decision in Benshoff v. City of Virginia Beach, 180 F.3d 136 (4^th Cir. 1999). It found the following similarities between Benshoff and the instant case:

1. The volunteer squads provided services before the county became involved.
2. The volunteer squads had their own officers and directors.
3. Even though the county holds certification power, the rescue squads reserve the right to accept or reject certified volunteers.
4. The county provides some funding to the squads, but the squads also have other funding sources.

One difference was that in the case under consideration, the county EMTs performed the same services as the volunteers, while in Benshoff, only the volunteers performed advanced life support.

The DOL concluded that the county has not eviscerated the independent nature of the crew and that the crew remains separate and independent under 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 FLSA2008-12. 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 discusses whether bonuses must be included in the regular rate of pay for overtime calculations under the FLSA.

On December 22, 2005, a city paid a bonus to generally all full-time emergency communications operators “in recognition of the high stress level of the employees’ duties.” The city had not previously promised this bonus, but the union representing the employees needed to approve it before payment. Since discretionary bonuses may be excluded from the regular rate of pay for overtime rate calculations, the Opinion Letter must resolve if the bonus be discretionary.

The city was concerned that even though it considered the bonus discretionary, it might be construed as non-discretionary since the city reached a memorandum of understanding (MOU) with the union representing the workers on December 14, 2005 and did not pay the bonus until December 22, 2005. The DOL concluded that the bonuses were not issued “pursuant to the MOU, but rather used the agreement to formalize a decision previously made.” Therefore the bonus was considered discretionary and “excludable from the regular rate of pay under §7(e)(3).”

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 recently issued Administrator signed Opinion Letter FLSA2008-11. 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 discusses whether Assistant Athletic Instructors (AAIs) qualify as teachers exempt under the FLSA.

The facts are that AAIs “teach proper skills and skill development to student-athletes”; a bachelor’s degree is required although a master’s degree or equivalent experience is preferred. The AAIs spend more than half their time teaching “physical health, team concepts, and safety.” Although they work under a head coach, they also exercise considerable discretion and independent judgment.

The AAIs spend time on activities that don’t include teaching activities, “such as developing effective recruitment strategies, recruiting and following up on prospective students, researching and targeting high schools and athletic camps as sources for potential student-athletes, and visiting high schools and athletic camps to conduct student interviews.” Since they spend more than half their time on teaching activities, however, the non-teaching time is not determinative. Furthermore, the institutions of higher learning where the AAIs work would presumably qualify as educational establishments. Therefore, the AAIs would qualify as exempt from minimum wage and overtime requirements under 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 recently issued Administrator signed Opinion Letter FLSA2008-10. 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 discusses whether employers must pay for replacement uniforms for employees who repeatedly damage uniforms in non-work-related activities.

A tipped employee who worked in a dining facility received $2.13 in cash wages and the employer claimed a tip credit so that the employee received at least the federal minimum wage. The employer requires the employee to wear a uniform that is provided by the employer at no cost to the employee. The employer provides an adequate number of uniforms to employees “relative to the nature of their work assignments and job duties.” The uniform does not require any special laundering.

One employee damaged several uniforms while riding a skateboard on days that he wasn’t working. The employer wanted to know if it must continuously replace such uniforms at no cost to the employee or if the employee could be charged for the uniforms. Employers may not charge directly or indirectly for uniforms required as a condition of employment if the charge would reduce the employee’s wages below the required minimum wage or overtime pay. The employer must also replace uniforms damaged at work using the same guidelines. Employers may charge, however, both for additional uniforms voluntarily purchased by any employee beyond the normal allotment and for uniforms damaged by the employee during personal use without violating 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 recently issued Administrator signed Opinion Letter FLSA2008-9. 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 discusses whether instructors in a cosmetology school are teachers who qualify for the professional exemption of the FLSA.

The instructors in the instant case are licensed cosmetologists in addition to being licensed as instructors by their State Board of Cosmetology. The school is licensed by that board and accredited by the National Accrediting Commission of Cosmetology Arts and Sciences. This accreditation qualifies the school as an “educational establishment”. Although the instructors do not have teaching certificates, their primary duty is “teaching and instructing students in cosmetology theory, as well as in the practical part of the curriculum.” This means that the instructors are “teachers of skilled or semi-skilled trades and occupations.” Therefore, the instructors qualify under the professional exemption of 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 recently issued Administrator signed Opinion Letter FLSA2008-8. 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 discusses which revenues of a non-profit shelter for homeless animals count toward “the $500,000 threshold for enterprise coverage under §3(s)(1)(A) of the FLSA”. Revenue for the shelter comes from the following four sources:

• Cash donations
• Fees for adoptions and spay/neuter certificates
• Membership dues
• Interest and dividends

FLSA provides coverage in two ways—enterprise coverage and individual coverage. Among other activities, enterprise coverage applies to enterprises with “sales made or business done” of $500,000 or more and two or more employees engaged in commerce or the production of goods for commerce. Since the US Department of Labor has generally held that income from eleemosynary activity does not count toward the $500,000 threshold, the shelter income from donations or dues would not be included in the calculation. Since services for adoptions and spay/neuter certificates are for a “business purpose…in competition with other businesses” they do not qualify as eleemosynary activities. Interest and dividends must also be counted toward the $500,000 threshold. Since the revenue of the shelter from these sources was less than $500,000, employees of the enterprise do not qualify for coverage under FLSA enterprise coverage.

Employees may still be covered under FLSA individual coverage for “any workweek in which they are engaged in interstate commerce, the production of goods for commerce, or activities closely related to and directly essential to the production of goods for commerce.” Examples given include the following:

• Making or receiving interstate telephone calls
• Shipping materials to another state
• Transporting persons to another state
• Transporting property to another state

The Opinion Letter states that the US Department of Labor does not require coverage for employees who only occasionally spend “an insubstantial amount of time performing” such work.

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 FLSA2008-7. 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 states that a substitute teacher may qualify for the Professional exemption of the FLSA if the substitute teacher’s primary duty is teaching. Generally, the Professional exemption requires a “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Under the state law at issue, substitute teachers do not need a college degree or teaching certificate if they have a state-issued substitute teaching permit. The DOL concluded that it was not the degree requirements that qualified teachers as learned professionals; indeed the requirements vary widely by state and even school, with no standard minimum qualifications. Since discretion and judgment is required for teaching, substitute teachers whose primary duty is teaching qualify for the exemption. Conversely, substitute teachers whose primary duty is not related to teaching do not qualify for the exemption. 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 recently issued Administrator signed Opinion Letter FLSA2008-6. 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). This Opinion Letter discusses whether a city that employs workers in a Water Treatment Plant may include on-call compensation received in a two-week pay period with other pay received in a two-week pay period for purposes of computing the overtime rate of pay to be applied to that period. An employee is paid $2.50 per hour for on-call time that is not considered hours worked under the FLSA. The employee may work overtime during only one week of two-week period. The city proposed including the on-call compensation with all other compensation received in the two-week pay period and dividing by the number of hours worked in that pay period to arrive at a regular rate of pay. For example, an employee earns $10 per hour, works forty hours in the first week and forty-five hours in the second week of a two-week pay period and also receives $100 of on-call compensation. The city proposed paying overtime based on a regular rate of $11.18 per hour. (40 hours X $10/hour) + (45 hours X $10/hour) + $100 = $950 total compensation. $950/85 hours = $11.18 per hour regular rate of pay for overtime purposes. The overtime premium under this method would be $27.95 or $11.18/hour X 5 hours X0.5 premium. If a one-week pay period were used, a regular rate of $12.22 would be used for the overtime calculation (45 hours X $10/hour) + $100 = $550 total compensation and $550/45 hours = $12.22 per hour. The overtime premium under this method would be $30.55 or $12.22/hour X 5 hours X0.5 premium. The FLSA uses a standard of a single workweek for calculating the regular rate of pay and does not allow averaging over two weeks even if the employee’s pay period is normally two weeks. Since “the specific hours for which on-call pay was earned are identifiable, the payment for on-call time must be attributed to the workweek in which the on-call hours occurred.” Therefore, the city must use the latter method to calculate the employee’s regular rate of pay and may not use a two-week period. 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.