As previously mentioned, the DOL has been busy with the Fair Labor Standards Act and has issued a number of Opinion Letters in the past few months. Because most of them are very fact specific, they will only be briefly summarized and readers can read their few pages in full by clicking on the links.
l
No.
2019-5: Activities of farm employees to prepare produce for the owners own
farmer’s market and to deliver the produce to market can be exempt secondary
agricultural activities.
l
No.
2019-4: County Extension (i.e., 4-H) nutrition and cooking outreach instructors (who are only required to
have a GED) qualify for the exemption for teachers from overtime and minimum
wages.
l
No.
2019-3: Could not determine from the facts presented whether a youth
residential care facility provided enough medical care to qualify for 8 and 80
overtime system (i.e., overtime is paid when the employee works more than 8
hours in a day or 80 hours in a two week period).
l
No.
2019-2: Employers need not compensate employees for genuinely volunteering
for a charity after hours even if they could receive a bonus for doing so: The employer encouraged its employees to
volunteer at sponsored events during the work day (for which they were paid)
and during their free time after work.
Teams competed against each other and the winning team could win a
prize. The employer considered the
number of hours that each team volunteered and was considering using an app to
track employee volunteer hours. An
employer may use an employee’s time spent volunteering as a factor in
calculating whether to pay the employee a bonus, without incurring an
obligation to treat that time as hours worked, so as long as: 1) volunteering
is optional, 2) not volunteering will have no adverse effect on the employee’s
working conditions or employment prospects, and 3) the employee is not
guaranteed a bonus for volunteering. The employees could select the charity or
the employer’s choice.
l No.
2019-1: Live-in building custodians are subject to the FLSA and it is not a
good faith defense to rely on state-law exemptions. But an employer may enter into reasonable
agreement with individuals as to what constitutes working hours.
l No.
2018-29: Members of religious commune who volunteer their services are not
employees.
l No.
2018-28: Employer’s compensation system complied with minimum wage
requirements, but only with overtime requirements when employee’s regular rate
was under $10/hour. The employer calculated
their weekly wage by multiplying the employee’s hourly rate by the number of
hours the employee spent working time with clients and then divided that number
by the total hours worked that week (including travel). With this system, the employer guaranteed the
employee earned above the minimum wage.
If the employee worked over 40 hours in a week, the overtime rate was
calculated at the typical wage of $10/hour (even if regular rate was more than
$10/hour). That system only complied
with overtime wage requirements if the employee’s regular rate was less than
$10/hour.
l No.
2018-27: When tipped employees wear two hats and when the tip credit can be
taken (i.e., if waiter is also bussing or being a janitor).
l No.
2018-25: An employer can pay a salaried employee too much. The employer paid its engineers a minimum
$2100/week, but also paid an additional $70/hour for all hours worked over 30
each week (because their working hours varied so much throughout the year).
Hours were unpredictable and some employees earned $3750 some weeks – almost
twice minimum salary. That could be too
much distortion to constitute a regular salary. 150% is close to, but not
necessarily, the maximum distortion.
While employers are permitted to pay salaried employees extra pay, there
is still a requirement that the extra pay bear some relation to their
regularity of salary.
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.
