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David G. Gabor, Esq. 

 David Gabor is widely recognized as an expert in the area of employment, human resources and business law. He has been called upon to proactively represent clients in litigation, the negotiation and drafting of contracts, handling compliance issues, the creation of corporate infrastructure, the drafting of policies, training of employees and leading companies towards organizational excellence. 

  

 

 

 

The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and investment management.

 

Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has seven offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 31 attorneys, senior benefits consultant and four paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process.

 

 

 

   

 

 

 

Contact Info

The Wagner Law Group

 

  Integrity | Excellence

  

Boston 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

 

Washington, D.C.

Tel: (202) 969-2800

 

Fax: (202) 969-2568

 800 Connecticut Avenue, N.W.

Suite 810

Washington, D.C. 20006

 

Chicago

Tel: (847) 990-9034

Fax: (847) 557-1312

190 South LaSalle Street

Suite 2100

Chicago, IL 60603

 

  

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418

   

Tampa

Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 

  

San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104

  

St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119 

 

 

www.wagnerlawgroup.com

 

 

 

 

 

A Window into the DOL Wage and Hour Division: Opinion Letters Shed Light

 

 

by David Gabor, Esq. 

 

 

 

The U.S. Department of Labor Wage and Hour Division ("WHD") is responsible for providing guidance regarding wage and hour questions that arise under the Fair Labor Standards Act ("FLSA"). Historically, the WHD has used Opinion Letters as a vehicle to provide guidance on matters such as employee classification, which can be a valuable resource for employers in complying with the requirements of the FLSA.

  

Proper employee classification is critical because errors can lead to claims asserted by employees for unpaid wages, penalties, benefits, and counsel fees. Employers also face exposure when they fail to properly track time that employees worked. However, employers need not pay employees for time that is not compensable under the FLSA.

  

In January 2009, the WHD issued 17 Opinion Letters addressing issues such as employee classification and the tracking of time spent working. These Opinion Letters were all issued during the final days of the Bush administration. On March 2, 2009, the WHD withdrew these Opinion Letters "for further consideration" and stated that it would "provide a further response in the near future." No further action was taken on these letters during the Obama administration. Subsequently, on January 5, 2018, the WHD reissued all 17 Opinion Letters. What is clear is that interpretations of laws and regulations change with each administration.

  

One of the Opinion Letters addressed when, and under what circumstances, "on call" time is compensable. This issue requires a fact intensive analysis of whether the employee is "prevented from effectively using the time to engage in personal pursuits." The WHD found that an individual is not considered to be working if there is sufficient ability for that individual to enjoy private pursuits while "on call." Employers should not conclude that this means that all employees do not need to be paid when they are "on call." In certain circumstances, employers can set expectations so that it is not necessary to compensate employees who are "on call."

  

Several Opinion Letters shed light into how the WHD analyzes the application of the executive, professional, and administrative capacity exemptions. Section 13(a)(1) of the FLSA provides a minimum wage and overtime pay exemption for any employee who is employed in a bona fide executive, administrative or professional capacity. The line between who is and who is not exempt is not always clear. This can also change when an employee's responsibilities change. The Opinion Letters indicate that the focus is on the work actually performed by the employee and not so much on his or her title. The insight that can be gained from the WHD through its Opinion Letters as to how the current administration treats these exemptions can be quite valuable.

  

An interesting issue addressed by the WHD concerns whether a high school coach is exempt from overtime. In an Opinion Letter, the WHD reasoned that a coach is exempt from overtime if his primary duty is imparting knowledge to students in an educational establishment. The focus is on whether the coach spends the predominant amount of his time coaching teams as opposed to performing administrative functions. If so, he is exempt from overtime. The same conclusion is reached regardless of whether the coach holds a teaching certificate or has a college degree, as the analysis focuses on what the coach does, and not on his or her academic background.

 

Employer Takeaway. It is clear that the WHD focuses on what work employees are actually doing. Accordingly, employers should resolve questions of employee classification by focusing on an employee's actual function and not on their title, job descriptions or education. It is also important for employers to keep current with the WHD's interpretation of the employer-employee relationship under the FLSA. By taking time to review the Opinion Letters, employers can help ensure that their practices are compliant with the FLSA, and it will have the added benefit of assisting employers in ensuring that they do not overpay employees.

 

 

 

This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.

 

This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.