News & Events

USDOL Reissues 17 Opinion Letters That Were Withdrawn in 2009

Submitted By Firm: Bond, Schoeneck & King, PLLC

Contact(s): Louis P. DiLorenzo, Thomas G. Eron

Author(s):

Subhash Viswanathan

Date Published: 1/25/2018

Article Type:

Share This:

On January 5, 2018, the U.S. Department of Labor’s Wage and Hour Division reissued 17 opinion letters that were withdrawn in 2009, shortly after President Obama began his first term in office. The USDOL under the Obama administration withdrew the 17 opinion letters on March 2, 2009, stating that they were being withdrawn “for further consideration” and that it would “provide a further response in the near future.” However, it does not appear that the USDOL actually revisited any of the opinion letters that had been withdrawn, so the USDOL under the Trump administration has now reissued those opinion letters and has renumbered them as FLSA2018-1 through FLSA2018-17.

The reissued opinion letters cover a variety of topics. Each opinion letter is briefly summarized below.

  • FLSA2018-1 addresses whether on-call hours of county ambulance personnel constituted compensable hours worked under the Fair Labor Standards Act. According to the USDOL, such on-call hours were not compensable hours worked, because employees were not required to remain at or around the ambulance garage or at home during on-call hours, and because the relative lack of frequency of calls did not prevent employees from using their on-call time for personal pursuits. Even though employees were required to report to the ambulance garage within five minutes of being paged, the USDOL found that the city where the ambulance service was located was small enough that driving anywhere in the city limits “takes only a few minutes.”
  • FLSA2018-2 addresses whether a drain cleaning and minor plumbing repair and replacement business qualified as a “retail or service establishment” for purposes of the Section 7(i) overtime exemption. According to the USDOL, it did. This particular exemption applies to any employee of a retail or service establishment if: (1) the regular rate of pay 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 represents commissions on goods or services.
  • FLSA2018-3 addresses whether civilian helicopter pilots employed by the Division of State Police qualified for a white collar exemption. According to the USDOL, these employees did not qualify for a white collar exemption and were eligible for overtime pay.
  • FLSA2018-4 addresses whether project superintendents at a commercial construction company qualified for a white collar exemption. According to the USDOL, the particular project superintendents at issue qualified for the administrative exemption because they exercised discretion and independent judgment with respect to matters of significance by, among other things, hiring subcontractors and overseeing the work of subcontractors.
  • FLSA2018-5 addresses whether certain collective bargaining agreement wage payment provisions properly calculated the regular rate of pay for firefighters and alarm operators employed by a municipality. The USDOL found that the CBA provisions did not properly calculate the regular rate for the firefighters, but did compute overtime correctly for the alarm operators.
  • FLSA2018-6 addresses whether community members who coach athletic teams for a public school were exempt from the FLSA’s minimum wage and overtime pay requirements as teachers. The USDOL concluded that the particular coaches at issue were exempt under the teaching exemption because their primary duty was instructing student athletes in the rules and fundamentals of their respective sports.
  • FLSA2018-7 addresses whether a hospital could take deductions from the salary of an exempt Registered Nurse for absences of one or more full days based on the number of hours the RN missed on that particular day. The USDOL found that these deductions for personal absences in a full-day increment, based on the particular number of hours the RN was scheduled to work on that day, were permissible deductions.
  • FLSA2018-8 addresses whether client service managers at an insurance company qualified for the administrative exemption. Under the particular facts set forth in the opinion letter, the USDOL found that the client service managers qualified for the administrative exemption because they exercised significant discretion and independent judgment in advising clients about their insurance needs.
  • FLSA2018-9 addresses whether a year-end non-discretionary bonus based on a percentage of straight-time and overtime earnings from the preceding year was permissible if it excluded from the calculation payments earned by the employee that were not part of the regular rate computation. According to the USDOL, such a bonus was permissible.
  • FLSA2018-10 addresses whether a project supervisor in the residential homebuilding industry qualified for an exemption to the FLSA overtime requirements. According to the USDOL, the particular project supervisors at issue were exempt under the administrative exemption because they exercised significant discretion and independent judgment by, among other things, adjusting the construction process as necessary, negotiating solutions to issues raised by the building inspector, and hiring and terminating subcontractors.
  • FLSA2018-11 addresses whether job bonuses consisting of a flat dollar amount per day were required to be included in the regular rate for overtime purposes. The USDOL found that the bonuses were required to be included in the regular rate.
  • FLSA2018-12 addresses whether consultants, clinical coordinators, coordinators, and business development managers employed by a company that supplies temporary medical professionals to hospitals qualified for the administrative exemption. The USDOL found that, based on their job duties, the employees in all of these classifications exercised sufficient discretion and independent judgment to qualify for the administrative exemption.
  • FLSA2018-13 addresses whether certain positions in a business that combats fraud and theft in the insurance industry qualified for the administrative exemption. The USDOL found that two positions qualified for the administrative exemption, and three did not.
  • FLSA2018-14 addresses whether salary deductions from an exempt employee’s salary in full-day increments were permissible when an exempt employee was absent for a full day, but did not have enough paid leave time to cover the entire absence. According to the USDOL, such deductions were permissible.
  • FLSA2018-15 addresses whether out-of-town coordinators for a product demonstration company qualified for the administrative exemption. The USDOL found that the particular coordinators at issue qualified for the administrative exemption.
  • FLSA2018-16 addresses whether an individual could volunteer to perform unpaid services for a not-for-profit entity if the individual was also employed by a contractor of that entity to perform similar services. According to the USDOL, if the not-for-profit entity was considered to be a joint employer of the individual, then the individual could not volunteer to perform the same type of services for which he or she received payment as a contractor.
  • FLSA2018-17 addresses the same issue addressed in FLSA2018-10 (whether employees of homebuilders who supervise residential construction qualified for the administrative exemption).

It is important to understand that each opinion letter was issued in response to a specific request that was submitted to the USDOL, and that the opinion set forth in each letter is therefore based on the particular facts and circumstances described in the request. Before relying on a USDOL opinion letter for guidance, an employer should consult with counsel to determine how closely the employer’s circumstances resemble the circumstances set forth in the opinion letter, and to ensure that there are no other inconsistent judicial rulings that might be relevant to the analysis.

If you have any questions about this Information Memo, please contact Subhash Viswanathan, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.

Find a Member

View or print a complete ELA member list »

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel