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 FLSA2009-8. 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:

1. The regular rate of pay of such employee is in excess of one and one-half times the minimum wage, and
2. 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.

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:

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 (DOL) recently issued Administrator signed Opinion Letter FLSA2009-5. 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).

In this Opinion Letter, the DOL confirmed that lifeguards employed for less than seven months of the year are exempt from the minimum wage and overtime requirements of the FLSA. The lifeguards in question were employed by a town “to protect swimmers at the local beach.”

Since employees of an “establishment that is an amusement or recreation establishment, organized camp, or religious or non-profit conference center” that is not open more than seven months in a calendar year are exempt from the FLSA, a key factor was the definition of “establishment”. The Opinion Letter also confirmed that an amusement or recreational establishment supported by tax revenues cannot qualify under a second test involving the seasonality of the revenue collected.

The Opinion Letter clarified that “the term ‘establishment’ refers to a distinct physical place of business rather than to an entire business or enterprise, which may include several separate places of business.” Also, the fact that some employees may work more than seven months in a year does not deny the exemption as long as the beach is not open for protected swimming for more than seven months.

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 FLSA2009-3. 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 method of calculating retroactive overtime pay was compliant with the FLSA. After a reorganization at the employer, certain formerly exempt employees no longer performed the duties that qualified them as exempt. These employees had been paid a salary even after they had become non-exempt employees. This salary might have been reported on their bi-weekly pay stubs as 100 hours worked at $18.25 per hour for a salary of $1,825.00 regardless of the number of actual hours worked. This was due to an understanding that these employees would generally work at least fifty hours each work week and the limitations of the employer’s payroll department and software.

The employer’s method for calculating overtime for the newly non-exempt employees was as follows:

1. Determine the actual hours worked by an employee for a given week.
2. Calculate the equivalent of the employee’s weekly salary by dividing the bi-weekly salary by two.
3. Divide that weekly salary by the number of hours worked in that week.
4. Divide that resulting hourly rate equivalent by two in order to determine the hourly overtime premium.
5. Multiply that overtime premium rate by the overtime hours worked in that week.

In all cases, the resulting hourly rate calculated exceeded the applicable minimum wage.

The Opinion Letter stated that the fact the payroll software displayed an hourly rate on the check did not mean that the employer was required to pay overtime based on that rate; therefore, the employer’s method of calculating overtime was in compliance with 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 FLSA2009-1. 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 employee attendance at State mandated training programs by child care center workers does not result in hours worked under the FLSA. The DOL lists four criteria that must be met for the time not to be counted as hours worked:

1. Attendance is outside of the employee’s regular working hours;
2. Attendance is in fact voluntary;
3. The course, lecture, or meeting is not directly related to the employee’s job; and
4. The employee does not perform any productive work during such attendance.

In this case, the employer offered the training courses after-hours, thereby meeting criterion 1. Employees could choose to attend or not, thus meeting criterion 2. The training qualifies under an exception for criterion 3 that states that “where the training is for the benefit of the employee and corresponds to courses offered by independent bona fide institutions of learning,” the training is not considered directly related to the employee’s job. As long as employees do not perform productive work during the training, criterion 4 would be met.

The DOL concludes that such training does not qualify as hours worked under the FLSA unless the State does not require the employer to provide the training.

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 FLSA2008-14NA. 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 (DOL) recently issued Administrator signed Opinion Letter FLSA2008-19. 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 confirms that exempt store managers do not lose their exempt status while training to become area sales managers. The company chooses store managers who are top performers to enter a seven-week training program to become area sales managers. Eight to ten store managers report to one area sales manager. At the beginning of the training period, the trainee performs little to no exempt work. As the program progresses, the trainee gradually assumes most to all of the responsibilities of the trainer. Successful trainees return to their store manager position to await an opening and a promotion. Unsuccessful trainees just return to store manager duties.

For this letter, the DOL assumed that both the store manager and area sales manger positions were exempt. Even though for some weeks of the training, the trainees may have performed mostly non-exempt work, the executive exemption need not be met or tested on a week-by-week basis. Since the primary duty of the trainees remained as store managers and since they did not perform “work that would otherwise be performed by nonexempt workers”, there is no reason for the trainees to lose their exempt status during the training program.

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 FLSA2008-17. 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 clarifies that Certified Occupational Therapist Assistants (COTAs) employed by a school district do not qualify as either exempt professionals or exempt administrative employees in educational establishments. The COTAs were requesting to be reclassified from nonexempt paraprofessionals to exempt professional employees.

The educational requirement for COTAs “is that which is sufficient to obtain certification by the state Board of Occupational Therapy Examiners.” This requires “at least 60 academic semester credits or the equivalent from an accredited institution of higher education.” The DOL ruled that completion of only “60 semester hours does not qualify as a ‘prolonged course of specialized intellectual instruction.’” Additionally, COTAs do not meet the standards to qualify as registered or certified medical technologists.

Also, since COTAs primary duty is related to the health of the students, they do not qualify under the administrative exemption for employees in educational establishments.

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.