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DOL Opinion Letters: Just Do the Research

Mon October 1, 2018 Publications

Wage and hour issues are generally mechanical, but there are interesting exceptions and obscure exemptions. That’s when Department of Labor opinion letters help. On August 28, 2018, four such letters were issued, favoring employers and affirming the importance of detailed factual and legal analysis when defending claims for overtime pay.

Opinion 1Q: Is an employee’s voluntary participation in biometric screenings, wellness activities, and benefits fairs at work compensable under the Fair Labor Standards? A: No, this time is not compensable where the employee is relieved of all job duties and participation is wholly optional. “These activities provide direct financial benefit to only the employee, and they also help the employee make more informed decisions about matters unrelated to his or her job.” Thus, the employee’s participation predominantly benefits the employee.

Opinion 2Q: Are employees who sell a technology platform that enables online and retail merchants to accept credit card payments from their customers from a mobile device, online or in person, subject to the retail or service representative exemption from overtime? A: Yes, the business is a retail or service establishment because it engages in the making of sales of goods or services by selling its platform to a variety of purchasers for their own use and not redistribution, and the sale of this platform constitutes over 75% (actually, 100% here) of the company’s sales. Accordingly, employees of the company whose regular rate of pay exceeds one and one-half times the applicable minimum wage for workweeks in which they work overtime, and who commissions constitute more than half of their earnings are exempt from overtime.

Opinion 3Q: Is the FLSA applicable to “member examination graders” who volunteer for a nonprofit organization that administers professional examinations and who to travel and grade such examinations expecting no fee other than reimbursement of travel expenses? What about if they have traditionally been paid stipends? A: No, the FLSA does not apply to these volunteers who are typically highly compensated executive employees as they do this work for various service-oriented reasons and without contemplation of compensation.

Opinion 4Q: Does the motion picture theater exemption from overtime apply to foodservice employees (kitchen employees and servers) who work in the full-service on-site restaurant? A: Yes, even though these are food service employees, they are exempt because the food services operations are functionally integrated with the theater operations. Both are incorporated as a single entity for purposes of taxes, business records, purchases, invoices, and bank accounts. And motion pictures are shown consistently during hours of operations, more than the 50% percent threshold necessary to qualify as a motion picture theater exemption under the FLSA.

While employers must continue to be cautious in the area of wages, gems can be found in unusual facts, obscure exemptions, and opinion letters. Just do the research.

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