The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA 2009-12. 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).
In this Opinion Letter, the DOL confirmed that barbacks who receive tips from the bartenders they support qualify as tipped employees and therefore are eligible for tip credits. A barback is described as an assistant to the bartender who works the same hours as a bartender and whose primary duty is to support the bartender.
In this case, the barbacks did not directly receive tips from customers but from the bartenders they supported. The tips were more than $30 per month. Tip splitting or pooling is allowed under the FLSA in certain circumstances and the tips are allocated to the employee who retains them. Since the barbacks are “engaged in an occupation in which [they] customarily and regularly [receive] more than $30 a month in tips” they qualify as “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 FLSA 2009-11. 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).
In this Opinion Letter, the DOL concluded that a concessionaire at a privately-owned recreational establishment did not qualify as a recreational establishment. A recreational establishment is an “establishment that is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center that either ‘does not operate for more than seven months in any calendar year,’ or, ‘during the preceding calendar year,’ has ‘average receipts for any six months of such year [of] not more than 33 1/3 per centum of its average receipts for the other six months of such year.’” Although a restaurant may qualify as a recreational establishment if the host establishment qualifies and the acts with the concessionaire as a single establishment, in this case the entities were separate and distinct.
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.
This week’s question comes from Amy, an HR manager. Several of our employees have wage garnishments that are limited based on their earnings. How are wage garnishments affected by the increase in the minimum wage? Answer: A wage garnishment is when an employer, generally as a result of a court order, withholds an amount from an employee’s earnings in payment of a debt. Restrictions on wage garnishments are defined in Title III of the Consumer Credit Protection Act. §303 of Title III restricts the amount of most garnishments to the lesser of 25% of the employee’s “disposable earnings” or the amount by which the employee’s disposable earnings exceed 30 times the Federal minimum wage. Disposable earnings for this purpose generally means gross wages less deductions required by law. Voluntary deductions not required by law are not included in the calculation of disposable earnings. With today’s increase in the federal minimum wage, the calculation of the maximum garnishment amount has changed. For employees with disposable earnings greater than $290.00 ($7.25 X 40), a maximum of 25% can be garnished. For employees with disposable earnings less than $290.00 but more than $217.50 ($7.25 X 30), the garnishment equals the amount by which disposable earnings exceed $217.50. For employees with disposable earnings of $217.50 or less, no garnishment is allowed. There are exceptions for child support, alimony, certain bankruptcy court orders, and debts for federal and state taxes. A state law that allows a smaller garnishment takes precedence over the federal law. There are also different calculations for some other debts owed to the federal government and its agencies. Contact Vision Payroll if you have any questions on calculating the correct amount of garnishments on employee’s wages.
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The federal minimum wage will increase to $7.25 on Friday, July 24, 2009. Therefore, all work performed after July 23, 2009 should be compensated at the higher rate. In addition, the minimum wage will also increase to $7.25 in the following areas: Delaware, Idaho, Indiana, Maryland, Missouri, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Puerto Rico, South Dakota, Texas, Utah, Virginia, and Wisconsin. Also, the minimum wage in the District of Columbia will increase to $8.25. Contact Vision Payroll if you have any questions on the minimum wage increases.
The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-10. 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). 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 confirmed that community members who coach athletic teams qualify as teachers under the FLSA. Although a teaching certificate indicates that an employee qualifies for the exemption, there is no requirement that a teacher possess a certificate to qualify. Further, “there is no minimum education or academic degree required” for the exemption. Coaches qualify as teachers if their primary duty is “teaching and imparting knowledge to students in an educational establishment.” Since these community members apparently do not provide other services to the school district and there is no salary requirement for teachers under the FLSA, the coaches qualify and are exempt from minimum wage and overtime requirements.
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 FLSA2009-9. 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 FLSA2009-8. 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). 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 reviews the pay policy of a company that engages primarily in “drain cleaning and other minor plumbing repair and replacement services involving such items as water heaters, disposals, and toilets.” Eighty to ninety percent of the company’s revenues are from retail sales or services to private homeowners. The technicians receive pay based on twenty-three percent of the revenues attributable to their labor and five percent of the revenue attributable to their parts sales. They also receive a monthly bonus that is dependent on monthly sales. Their pay is guaranteed to be more than 150% of the minimum wage and is generally three to six times the minimum wage.
The DOL ruled that “because more than seventy-five percent of its annual dollar volume of goods and services it not for resale”, it qualifies as a “retail or service establishment”. Employees of such establishments are exempt from minimum wage if:
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The regular rate of pay of such employee is in excess of one and one-half times the minimum wage, and
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More than half of the employee’s compensation for a representative period (not less than one month) represents commissions on goods and services.
Since the employees apparently qualify under these standards, they are exempt from the minimum wage laws.
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.
Employers in three states must pay higher minimum wages effective today. In Illinois, the minimum wage increases from $7.75 per hour to $8.00 per hour. In Kentucky, the minimum wage increases from $6.55 per hour to $7.25 per hour. In Nevada, the minimum wage increases from $6.85 per hour to $7.55 per hour; for employees with qualifying health benefits, the minimum wage increases from $5.85 per hour to $6.55 per hour. Contact Vision Payroll if you have any questions on minimum wages.
The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-7. 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). 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, a county ambulance service requires its employees to be on-call approximately forty hours per week. On-call employees must carry a pager, respond in uniform within five minutes, and abstain from alcohol and other substances. Over a test period of two months, the typical on-call employee responded twelve or thirteen times in a month.
Generally, on-call time is compensable when the restrictions are too burdensome or callbacks are too frequent to allow employees to use the on-call time freely. The DOL concluded that since the town was small enough that employees could travel anywhere in town and still be able to respond in the allotted time, since on-call employees were not disciplined even when taking as long as eight minutes to respond, and since the number of callbacks was not too frequent, employees had effective use of the on-call time for personal purposes and were not required to be compensated (other than time spent on call-backs).
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:
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Flying of aircraft as business or company pilots;
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Aerial mineral exploration;
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Aerial mapping and photography;
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Aerial forest fire protection;
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Aerial meteorological research;
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Test flights of aircraft in connection with engineering, production, or sale;
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Aerial logging, fire suppression, forest fertilizing, forest seeding, forest spraying, and related activities involving precision flying over mountainous forest areas;
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Flying activities in connection with transmission tower construction, transmission line construction, transportation of completed structures with precision setting of footings, concrete pouring; or
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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.
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