I have often addressed the issue of Department of Labor Opinion Letters and how they provide very good guidance on the myriad wage-hour issues that employers must deal with. They are useful because they highlight the DOL’s thinking on any given issue, which, if then followed by an employer, gives that employer a “safe harbor” from any allegation that it has violated the Fair Labor Standards Act.

In Wage and Hour Opinion Letter FLSA 2009-6 (January 14, 2009), the issue was whether jet and helicopter pilots for a corporation were exempt as executives or professionals. Although the DOL could not definitively answer the particular question, since the company did not provide enough information for the agency to make a determination, the DOL reaffirmed its position of “non-enforcement” relating to pilots performing who flew aircraft as business or company pilots. This means that, essentially, the DOL will not investigate overtime claims by such employees and will “treat” these workers as exempt.

This company employed eight full-time pilots. They transported executives, customers, and guests to meetings/company facilities. All of the pilots held commercial pilot licenses and they all met/exceeded the Federal Aviation Administration requirements for acting as a pilot in command. The DOL tried to consider whether the “chief pilot” would be exempt under the executive exemption, but the FLSA regulations mandate that an exempt executive have, as his “primary duty” the management of an “enterprise or a customarily recognized department of subdivision thereof.” Thus, the chief pilot would not neatly fit this cubbyhole.

The Opinion Letter also noted that the DOL has long considered pilots to be non-exempt as learned professional employees, but nevertheless took a position of “non-enforcement” as far as certain pilots were concerned. This non-enforcement view applies to pilots and co-pilots who: 1) possess a FAA airline transport certificate or commercial certificate 2) receive compensation on a salary or fee basis of at least $455 per week; and, 3) engage in one of nine categories of aerial work, such as test flights, aerial photography, and meteorological research. One of the categories covered by the agency’s non-enforcement policy is “flying of aircraft as business or company pilots.”

The point here is that sometimes the DOL will simply back away from determination of the exempt status of a particular classification, especially if it is gray area and if the employees at issue are sufficiently well compensated so the DOL believes that “overtime” may not be a real issue for them.