This morning, the DOL issued four new FLSA letter
opinions. One concerned the exempt
status of part-time corporate trainers and one concerned eligibility for the
fluctuating work week method of overtime compensation.
In the first
letter, the employer asked about part-time corporate trainers who were paid
a day rate and then extra hourly pay for training that they provided to
executives of clients and developing materials for those training sessions. Some trainers work as few as 15 days/year
while other work on almost a full-time basis.
They are highly educated with an advanced knowledge in business finance
and adult education. Each trainer has at
least a master’s degree and 10 years of experience and some Ph.D degree. While the employees likely would have
qualified for the learned professional exemption, they were not paid on a
salary basis and, thus, could not be exempt.
While the extra hourly pay would not defeat the exemption, their payment
of a day rate was not consistent with the salary basis test.
In the second
letter, the question involved whether a non-exempt employee’s fluctuating work week had to
fluctuate both above and below 40 hours/week in order to qualify for that
method of calculating overtime compensation with a fixed salary. While the regulations require that the
employee’s working hours fluctuate from week to week, there is no requirement
that those hours ever fluctuate below 40 hours per week. Thus, when the employee’s work hours always
fluctuate between 40 and 60 or 70 hours, they are still eligible to be paid on
a fluctuating workweek basis. The DOL
also warned, however, that this method of overtime compensation has some
restrictions: employers cannot deduct
from the fixed salary personal absences that the employee takes even in full day
increments as employers can with other salaried or non-exempt employees. But, employers can still impose disciplinary
deductions from salary under this method of compensation.
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 change or be 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.
