Summary of 17 Opinion Letters for FLSA

Clarifies how the following primary duties fall within the scope of the FLSA’s administrative exemption:

·         Supervising and coordinating the construction of homes;

·         Serving as the homebuilding company’s representative at the worksite in dealings with subcontractors, suppliers, customers and government inspectors;

·         Spending more than half of his/her time directing, managing, scheduling and paying subcontractors and suppliers;

·         Reviewing and modifying new home plans, making sure there are no conflicts between the plans and the actual construction of the home;

·         Serving as each homebuyer’s primary contact in dealing with the construction of the home and also meeting with prospective customers to explain the construction process.

Individuals that work for pay as an employee of an employer cannot “volunteer” the same services for that employer, nor for any joint employer.

Clarifies how the following primary duties fall within the scope of the FLSA’s administrative exemption:

·         Developing and implementing strategies for recruiting and maintaining relationships with demonstrators;

·         Deciding how much effort to devote to expanding the pool of demonstrators;

·         Ensuring that a demonstrator executes a contract before conducting an event;

·         Receiving and resolving demonstrator complaints;

·         Ensuring that the appropriate number of demonstrators staff events and are fully prepared for them;

·         Determining the order in which to staff events, acting as liaison to managers of retail locations where events are scheduled; and

·         Developing a contingency plan for demonstrator no-shows or late cancellations.

·         When absences are caused for personal reasons, the FLSA allows employers to make full-day salary deductions for exempt employees. The FLSA, however, does not allow for salary deductions for partial-day absences.

·         Deductions from salary caused by sickness or disability (including work-related accidents) must follow the rules set out by the employer’s bona fide plan, policy or practice of providing compensation for loss of salary occasioned by sickness or disability.

Clarifies why the following primary duties fall within the scope of the administrative exemption:

·         Managing the collection of intelligence information;

·         Coordinating the collection efforts of area personnel; and

·         Evaluating and approving information to ensure accuracy and relevancy.

Clarifies why the following primary duties do NOT fall within the scope of the administrative exemption:

·         Conducting investigations;

·         Collecting and analyzing data; and

·         Producing analytical reports.

Clarifies why the following primary duties fall within the scope of the administrative exemption:

·         Screening, interviewing and recommending candidates for hiring;

·         Supervising and counseling to resolve issues regarding housing complaints and timeliness of payroll;

·         Addressing client facility concerns regarding problems directly;

·         Working with client facilities to monitor performance;

·         Serving as second-line supervisors to counsel and discipline employees regarding clinical and behavioral issues;

·         Analyzing existing market conditions to determine needs, competitors’ capabilities, and competitive billing and pay rates;

·         Training consultants and other employees; and

·         Analyzing client facilities’ staffing needs, bill rate tolerance and contract expectations.

All remuneration paid for employment must be included in the regular rate unless it is explicitly excluded under the law.

Clarifies why the following primary duties fall within the scope of the administrative exemption:

·         Evaluating the quality and efficiency of subcontractors’ and suppliers’ work;

·         Having authority to stop subcontractor work to correct any observed deficiencies, and may require subcontractors to remove any of their employees from the worksite;

·         If necessary, recommending the dismissal of subcontractors and suppliers whose work is not satisfactory;

·         Providing significant input as to who will be re-contracted for future services;

·         Making sure there are no conflicts between the plans and the actual construction of the home;

·         Negotiating the best solution for any issue that may arise with a building inspector, subcontractor or supplier; and

·         Scheduling the subcontractors and suppliers and committing the homebuilding company to pay when appropriate.

Ordinary inspection work generally does NOT meet the duties requirements for the administrative exemption. Ordinary inspection includes inspecting the work of subcontractors to ensure compliance with the builder’s plans to schedule subcontractors and supplies to ensure they were both in place at the proper time. The fact that the work is important to the company, affecting its profitability and reputation, is not dispositive.

An employer may exclude previous payments properly excluded from the regular rate under Section 7(e) of the FLSA when calculating a year-end bonus that is based on a percentage of an employee’s total straight-time and overtime earnings.

Clarifies why the following primary duties fall within the scope of the administrative exemption:

·         Comparing and evaluating possible courses of conduct and acting or making a decision after the various possibilities have been considered;

·         Having the authority to execute insurance and finance contracts and legally bind the agency and its clients;

·         Consulting with clients to identify risk and exposure, advising on determining proper values for the clients’ assets, and then recommending solutions to manage the clients’ risk and exposure; and

·         Acting as an insurance advisor and consultant to the agency’s clients, not selling an insurance product.

An employer may calculate a deduction for a full-day absence based on the number of hours actually missed. However, deductions are not permissible if the employee is absent for less than one full day of work.

·         Coaches qualify for the teacher exemption if their primary duty is teaching and imparting knowledge to students in an educational establishment.

·         Coaches whose primary duties are not related to teaching—for example, performing general clerical or administrative tasks for the school unrelated to teaching, including the recruitment of students to play sports, or performing manual labor—do not qualify for the teacher exemption.

·         There is no requirement that the employee possess a teaching certificate to qualify for the exemption.

·         There is no minimum education or academic degree required under the regulations for the teacher exemption.

·         Under Section 7(k) and 29 C.F.R. § 553.230, firefighters may be scheduled for a work period between seven and 28 days, as long as the ratio between maximum hours worked and days in the work period bears the same relationship as 28 days bears to 212 hours, as 159 hours in 21 days does.

·         The FLSA requires pay only for hours actually worked and not for holidays or vacation time.

·         The FLSA does not dictate the method of regular rate calculation for non-overtime hours so long as the minimum wage is met for all hours.

·         The learned professional exemption does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.

·         The following primary duties fall within the scope of the administrative exemption:

o  Overseeing a commercial construction project from start to finish; and

o  Securing or hiring subcontractors and overseeing the work of subcontractors.

In general, helicopter pilots do not qualify for an administrative, executive or professional exemption under the FLSA. Aviation is not a field of science or learning, and the knowledge required to be a pilot is not customarily acquired by a prolonged course of specialized intellectual instruction.

·         The FLSA provides an overtime exemption for any employee of a retail or service establishment, 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 or services.

·         The retail concept applies to a business that provides drain cleaning and minor plumbing repair and replacement services if more than 75 percent of its annual dollar volume of sales of goods and services is not for resale.

·         Computing employee compensation based on a percentage of the charge to the customer, such as the charge for labor and/or the charge for service and parts used in repair, can represent commissions on goods and services.

·         For the exemption to apply, the total amount of commission payments must be more than one-half the employee’s total compensation for a representative period (not less than one month).

On-call hours are compensable time if they restrict or prevent the employee from using his or her time freely. To determine whether on-call conditions are restrictive, employers should consider whether employees:

·         Are required to carry a pager;

·         Must report to work within a reasonable time;

·         Are disciplined if they fail to respond during the prescribed time;

·         Receive a high number or frequency of callbacks during on-call hours; and

·         Have to travel a great distance to report to work or before they can use their time freely.