Back in the day, the Administrator of the Wage and Hour
Division of the Department of Labor entertained requests for legal opinions
from real-life employers about real-life FLSA problems and the Administrator
would publish these letter opinions – with detailed factual situations -- for the edification of all. These official pronouncements were entitled
to some legal deference (albeit not as much as a formal regulation or rule) and
fostered stability in national compensation practices and material for legal blogs like this one. As previously reported here,
in the waning days of the Bush administration, the DOL attempted to publish 36
such letters, but failed to get 18 of them postmarked before President Obama
was inaugurated. The DOL published them
anyway in early March (but noted that the 18 were special and were being
withdrawn in order to be reviewed, reversed or clarified). Later that month, the DOL announced
that it would not issue any more detailed letter opinions, and would instead,
issue broad and non-specific Administrative Interpretations that did not
address particular situations of real-life employers with real world questions.
In June 2017, the Trump DOL announced
that it would return to issuing letter opinions and on January 5, 2018, it published 15 such letter
opinions. All of these merely formally re-stated
the opinion letters from January 2009 that had been withdrawn by the Obama
Administration in March 2009 (except for maybe one that has a faulty hyperlink). Not all were in favor of the employer. These letters addressed questions from the
healthcare, staff placement, construction, public safety and other industries.
These letter opinions were signed by the Acting/Deputy
Administrator. They include:
◦
Two letters involved the healthcare
industry. Employers may make full-day
deductions from the salaries of exempt employees in the amount of the hours
that they employee was scheduled to work.
So, if a RN called off sick on Friday, when she had been scheduled to
work 9.5 hours and had exhausted her PTO, then the employer may deduct 9.5
hours from her weekly salary. (Similar
result if she had only been scheduled to work 6 hours).
◦
This deduction may be from both the PTO bank
and, once exhausted, the remainder from salary.
◦
When calculating year-end non-discretionary
bonuses that are based on a percentage of straight and overtime hours, the
employer need not also include amounts which are not required to be included in
the employees’ regular rate (such as travel expense reimbursement and
discretionary bonuses).
◦
Certain business development, coordinator and
consultant employees of medical temporary placement firm were exempt administrative
employees.
◦
Certain project supervisors for home
construction businesses are exempt when their duties involve more than mere
inspection of work performed by subcontractors and include dealing with home
owners, personnel management, budgeting, etc.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
