Vision Payroll

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.

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 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.