Vision Payroll

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-14NA. 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 three points:

1. The restrictions an employer can impose during an on-call period.
2. Whether an employer is responsible for compensation when restrictions are imposed.
3. If the number of call-backs is a factor in determining if the on-call period is compensable.

Compensation for on-call periods is a question of facts and circumstances particular to each case. Generally, however, on-call time is compensable “when the on-call conditions are so restrictive or the calls so frequent that the employee cannot effectively use that time for personal purposes.” Carrying a pager or being required to report to work within a specified time period are usually not restrictions that require compensation.

The number of call-backs is a factor in determining if the on-call period is compensable. One court ruled that four or five calls per week was not enough to require compensation, while another court ruled an average of three to five calls in a twenty-four hour period was enough to require compensation for the on-call period.

Since the only restrictions that the employer in this case imposed were that the “employee must be reachable at all times, abstain from alcohol or other substances, and report to work within one hour of notification” and because call-backs were rare, the restrictions did not require compensation during the on-call period 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 non-Administrator signed Opinion Letter FLSA2008-13NA. 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 daycare instructors who spend a majority of their time teaching qualify as exempt teachers under the FLSA. The Opinion Letter stated “that the daycare center instructors [spent] a majority of their time teaching children between the ages of three and five a curriculum of basic reading, counting, and social skills.” The relevant State Department of Education did not license the daycare centers where the instructors worked, although they were licensed by the state’s Department of Public Welfare. The implication of this distinction is “that the state does not consider the day care centers to be providing educational services.” The Opinion Letter concludes that the instructors do not qualify for the teacher exemption since they do not provide elementary education under the laws of their state.

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 non-Administrator signed Opinion Letter FLSA2008-12NA. 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 a company that employs dump truck drivers uses an overtime calculation method in compliance with the FLSA. The company pays each dump truck driver a commission equal to 27% of the gross revenue that the company receives for the materials delivered by that driver. The company pays overtime based on one-half of the commission divided by the hours worked times the number of hours worked in excess of forty in that week.

For example, assume a driver delivers material that produces $5000 of gross revenue for the company and works fifty-four hours in that workweek. The driver would be entitled to commission compensation of $1350 ($5000 X 27%). This would work out to a regular rate of pay of $25 per hour ($1350 ÷ 54 hours). The driver would also be entitled, therefore, to $175 of overtime compensation ($25 per hour X 14 hours (hours worked in excess of forty) ÷ 2 (overtime premium rate)).

The DOL confirmed that this method of computing overtime pay was proper 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 non-Administrator signed Opinion Letter FLSA2008-11NA. 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 Adult Detention Officers may volunteer as Reserve Sheriff Deputies under the FLSA. According to the Opinion Letter “[p]ublic safety employees taking on any kind of security or safety function within the same local government are never considered to be employed in a different capacity.” Therefore, volunteering as deputy sheriffs in the same public agency is not allowed for detention officers under the FLSA. The detention officers may volunteer, however, “[i]f the two employers are not the same public agency”. Opinion Letters FLSA2006-28 and FLSA2006-21NA both discuss how to determine if two employers are the same agency.

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.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-9NA. 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 “jailers” who lack the power to make arrests qualify as “law enforcement personnel” partially exempt from overtime requirements. Although jailers may lack the power to make arrests, they qualify as “security personnel in correctional institutions” and thus qualify for the partial overtime 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 non-Administrator signed Opinion Letter FLSA2008-8NA. 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 on-call time is compensable under the FLSA. A non-profit ambulance rescue service requires employees to be on-call from 6 am to 8 am and from 4 pm to 6 pm five days a week. The employee uses a pager while on-call and must respond to call with the ambulance within eight minutes. The question to be answered is whether the employee is “engaged to wait” (compensable) or “waiting to be engaged” (non-compensable). During the winter months, when there is an average of one call every four hour shift, the frequency of calls along with other factors mandated that the employees be compensated for their time. During the non-winter months, when calls were usually zero, one, or two per week, the on-call time would be non-compensable. 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 FLSA2008-7NA. 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, in a question and answer format, discusses written policies regarding break and meal periods. The conclusions are as follows: 1) An employee, in violation of company policy, did not take a meal break or notify his supervisor that he did not take a break during a week in which he worked less than forty hours. No additional compensation is due the employee as long as he receives at least minimum wage for all hours worked, including the missed meal break. 2) The missed meal break that was worked counts toward the forty hour threshold for paying overtime to non-exempt employees. If the employee works more than forty hours, “the employee must be must be paid for all hours worked at the agreed rate plus the overtime premium.” 3) The answers to Q1 and Q2 are the same if, instead of missing a meal break, the employee arrives to work early or leaves work late in violation of written policy. 4) A written advisory to the employee not to work “unrecorded work hours” and that such work would subject the employee to disciplinary action is not necessarily enough to change the answer to Q3. Generally, it is management’s responsibility to make sure that such work should not be performed. 5) An employee receives time and one half pay that is not required under the FLSA, but paid due to company policy or contractual obligation, e.g., the employee is paid the premium if he works more than eight hours in a day. This premium may be credited toward any overtime premium required under the FLSA. Also, the additional pay does not need to be included in the calculation of the employee’s “regular” rate that is used to calculate the overtime premium. 6) Wages may be paid based on a methodology that rounds time worked “to the nearest five minutes, or the nearest one tenth or quarter of an hour” as long as, in the long run, the system does not fail to compensate employees properly for time worked. 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.