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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.

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.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-5. 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 school district can add an extra week to a pay period about five times over a twenty-eight year period and still comply with the Fair Labor Standards Act. For example, an employee who earns $13 per hour is paid a bi-weekly salary of $1,040 ($13 per hour X 40 hours per week X 52 weeks per year ÷ 26 pay periods per year). Non-exempt employees are paid overtime for hours worked in excess of forty in any particular week. Since there is a day or two more than fifty-two weeks in every year, the district would sometimes have twenty-seven pay periods. To maintain its policy of twenty-six pay periods per year, the district adds a third week to one pay period, but still pays the same salary. The employee in the example above would still receive $1,040 for a three-week period. Since the rate of pay is $8.67 for the three-week period, ($1,040 ÷ 120 [40 hours per week X 3 weeks]), the pay rate exceeds federal minimum wage. Furthermore, since non-exempt employees were paid overtime for hours worked in excess of forty in any of the three weeks, the policy did not violate 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 FLSA2008-4. 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. This Opinion Letter discusses whether a requirement to wear a certain type of shoe constitutes a uniform. It also discusses whether the employer is allowed to deduct a portion of the cost of the shoes from the employee’s pay, even if such deduction causes the employee’s pay rate to be below minimum wage. In this case, the employer “requires employees to wear ‘dark-colored’ shoes without prescribing any particular quality, brand, style, model, or type.” Optionally, an employee may purchase such shoes from a vendor through a program administered by the employer that allows the employee to elect to have the employer pay the cost of the shoes and deduct the cost from the employee’s paycheck. Since the employer’s only requirements were the color and that the shoes have non-slip soles and not be open-toed, they were not considered to be part of a uniform. Also, as the shoes were not part of a uniform and the employer did not deduct more than the actual cost of the shoes, the shoes can be considered “other facilities” furnished by the employer and therefore part of the wages paid the employee. 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.