Vision Payroll

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-9. 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). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL ruled that civilian helicopter pilots employed by the Division of State Police do not qualify as exempt employees under the FLSA. The pilots are not executive employees since “their primary duty is not managing the department or subdivision in which they are employed.” They are not administrative employees since piloting a helicopter is not “office or non-manual” work. The DOL has long held that pilots do not qualify under learned professional exemption since their primary duty does not have any “advanced knowledge that must be customarily acquired by a prolonged course of specialized intellectual instruction.”

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

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 recently issued non-Administrator signed Opinion Letter FLSA2008-10NA. 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). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether service coordinators qualify for the learned professional exemption of the FLSA. Service coordinators act as a concierge for the program participants, by assessing their needs, facilitating independent living, intervening on their behalf if necessary, and documenting all of the above. Although a bachelor’s degree and several years experience is preferred, candidates may qualify if an RN or with an associate’s degree in health or human services and one year of experience. The Department of Labor concluded that “[b]ecause the academic requirements for service coordinators may be met with an associate’s degree, the position lacks the requirement of ‘knowledge of an advanced type…customarily acquired by a prolonged course of specialized intellectual instruction.’” Therefore, service coordinators do not qualify as exempt 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.