Trump Administration Re-Issues 17 Wage and Hour Opinion Letters Written in the Final Days of Bush Administration; Most of the Opinion Letters Favor Employers Over Workers

On January 14, 2009 — a mere six days before President Barack Obama was sworn into office — the U.S. Department of Labor’s Wage and Hour Division issued a bunch of Opinion Letters that mostly interpret the FLSA in a restrictive manner. A few weeks later, the Obama administration “withdrew” the eleventh-hour opinion letters for “further consideration.”

The Bush Administration’s eleventh-hour Letters were never re-issued or modified because the Obama Administration decided to eliminate the use of Opinion Letters in favor of more generalized — and, in my opinion, more helpful — Administrator Interpretations. Opinion Letters often are of dubious value to the general public because the Letters (i) tend to be extremely fact-specific and (ii) often are based on “assumptions” regarding essential background facts.

Well, the January 2009 Opinion Letters are back. On January 5, 2018, the Trump Administration’s Acting Wage and Hour Administrator re-issued 17 Opinion Letters that were withdrawn in March 2009.

Most of the Opinion Letters favor employers over workers. Also, 7 of the 17 Letters concern the FLSA’s Administrative Exemption and reflect the growing prominence of that exemption in overtime rights law.

The following is my very brief summary of the outcome reached in each of the 17 Opinion Letter (along with links to the full text of the letters):

FLSA 2018-1: Ambulance workers not entitled to be paid for their “on-call” time.

FLSA 2018-2: Sales/Service Technicians employed by Plumbing Company are overtime-exempt under the Retail Sales Exemption.

FLSA 2018-3: Helicopter Pilots not covered by the Professional Exemption and, therefore, are entitled to overtime pay. Notwithstanding, DOL will take a position of “non-enforcement” with respect to most helicopter pilots.

FLSA 2018-4: Project Superintendents employed by a commercial construction company are overtime-exempt under the Administrative Exemption (but not the Executive or Professional Exemptions).

FLSA 2018-5: Under FLSA Section 7(k), the “regular rate” was not properly calculated for Firefighters but was properly calculated for Alarm Operators.

FLSA 2018-6: Coaches without a teaching certificate overtime-exempt under the Professional Exemption pursuant to the regulations applicable to teachers.

FLSA 2018-7: Under 29 C.F.R. 541.602, deductions from the salary paid for a worker covered by the white-collar exemptions can be made based on the number of hours in which the employee was absent from work during a scheduled workday as long as the employee was absent for the entire workday.

FLSA 2018-8: Client Service Managers employed by insurance company are overtime-exempt under the Administrative Exemption.

FLSA 2018-9: Non-discretionary, year-end bonus based on the prior year’s regular and overtime earnings does not trigger additional overtime pay obligations. This Opinion Letter contradicts and overturns a prior Opinion Letter issued in 1973.

FLSA 2018-10: Project Supervisor employed by residential home construction company is overtime-exempt under the Administrative Exemption.

FLSA 2018-11: “Job Bonus” payments of $100 per day made to hourly oil and gas employees must be included in the “regular rate” when calculating the amount of overtime pay owed.

FLSA 2018-12 (mis-dated December 17, 2017): Certain “Consultants,” “Clinical Coordinators,” “Coordinators,” and “Business Development Managers” employed by health care company are overtime-exempt under the Administrative Exemption.

FLSA 2018-13: Addresses whether various salaried employees working for company that investigates insurance claims are covered by the Administrative Exemption. Found that employees holding the position of “Field Information Analyst” and “Supervisory Special Agent” are overtime-exempt, while employees holding the “Analyst” position are non-exempt.

FLSA 2018-14: If a salaried-exempt employee is absent for a full workday and does not have enough time in his or her leave bank to cover the entire absence, the employer may deduct the salary to account for any portion of the full-day absence not covered by the leave bank. Also, as in FLSA 2018-7 (discussed above), salary deductions may be based on the number of hours in which the employee was absent from work during a scheduled workday as long as the employee was absent for the entire workday.

FLSA 2018-15: “Out-of-Town Coordinators” employed by a national product demonstration company overtime-exempt under the Administrative Exemption.

FLSA 2018-16: EMTs who purportedly spend some weekly work hours “volunteering” for local firehouse and other weekly work hours working for a for-profit company that provides services to the same firehouse are entitled to overtime pay based on their combined weekly work hours in the FLSA’s horizontal joint-employment criteria can be met.

FLSA 2018-17: This Letter attaches a previously-issued Opinion Letter in response to an inquiry regarding the overtime-exempt status of Construction Supervisors employed by a residential homebuilder. I cannot figure out what Opinion Letter is attached due to a broken link in the DOL website. Although it is quite possible that the attached letter is FLSA 2018-10 (discussed above).

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