I have often blogged about the usefulness of USDOL (or any DOL) Opinion Letters and I have lamented that this procedure was stopped under President Obama. I hailed that the new Secretary of Labor was going back to it. Well, we have hit the bonanza and the year has just started! Opinion Letters provide a mechanism for businesses (or individuals) to ask that the DOL provide formal guidance on specific factual and/or compliance issues under the FLSA.
The agency has now re-issued more than a dozen advisory opinion letters that had been published towards the end of the Bush administration but were later rescinded. The reinstated letters address inclusion of bonus issues, employee exemption issues, especially the administrative exemption and whether “on-call” hours constitute hours worked in certain situations.
For example, in one letter the DOL ruled that project supervisors working in a residential home building industry qualified for an administrative exemption. The Opinion Letter noted that the majority of the project supervisors’ job duties were administrative in nature and required the use of independent judgment. Those duties included acting as the homebuilding company’s representative at the worksite in dealings with subcontractors, suppliers, customers and government inspectors and modifying the construction process as needed.
The DOL also emphasized the independent judgment factor when it found (in another letter) that client service managers at an insurance company qualified for the administrative exemption. These employees’ primary duty was to serve as insurance advisers and consultants to the insurer’s clients. As such, they utilized independent judgment when giving advice and did not need to receive prior approval for their advice.
There were also letters that addressed under what conditions bonuses should be included in the regular hourly rate of employees, which increases the amount of overtime the employees would be due. These letters are vital because these issues come up with regularity.
These letters might address technical issues but they also touch on substantive ones as well. I respect and value these letters because they still provide answers to important questions and serve as definitive guidance in assisting employers in complying with the FLSA.
A thorny enough task by itself…