DOL Reinstates FLSA Opinion Letters

By: Karen L. Piper

On Friday, January 5, 2018, the Department of Labor (“DOL”) reinstated its longstanding practice of issuing opinion letters on the Fair Labor Standards Act (“FLSA”).  It did so by reissuing 17 opinion letters originally issued in January 2009 (under the Bush Administration).  These opinion letters were withdrawn or put on hold for further consideration in March 2009 (under the Obama Administration).  The Obama Wage & Hour Division (“WHD”) did not issue any opinion letters.  Instead, beginning in March 2010, the Wage & Hour Division issued its first “Administrator Interpretation” addressing the issue of administrative exemption for mortgage loan officers.  As announced, these Administrator Interpretations were designed to replace opinion letters and to cover broader issues.

In June 2017, the Department of Labor withdrew two Administrator Interpretations on joint employment (2015) and independent contractors (2016).  The DOL announced then that it planned to reinstate the practice of issuing opinion letters which were DOL responses to specific fact situations submitted by the public.

The reissued opinion letters have new 2018 numbers, but reproduce “verbatim” the text of the letters issued in January 2009.  The letters are an “official statement of WHD policy.”  This means employers can rely on them.

The issues addressed in the 2018 letters include the following.

  • Whether ambulance personnel “on-call” time is compensable work hours.
  • Whether community members who coach athletic teams for a public school are exempt.
  • Whether an employer may exclude previous payments properly excluded from the regular rate when calculating a year-end bonus which is based on a percentage of an employee’s total straight-time and overtime earnings.
  • Whether client service managers at an insurance company qualify for the administrative exemption
  • Whether an employer can deduct an hourly equivalent of a full day of work from an exempt employee’s salary when the employee is absent for one or more full days due to personal reasons or for such leave after having exhausted paid sick leave.
  • Whether an employer can make a salary deduction from an exempt employee’s salary when the employee is absent for a full day but does not have enough leave time in his/her leave bank to cover an entire day.

The reissued letters are posted on the DOL website: https://www.dol.gov/whd/opinion/flsa.htm

Questions about these or other federal wage and hour issues should be discussed with experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com.  For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. January 2018.