A Flurry of New DOL Opinions – Here Today, Gone Tomorrow?

The U.S. Department of Labor (DOL) issued a flurry of opinion letters at the end of the last administration. Some still stand and some were withdrawn. Here is a summary of some of the key opinions.

• DEC 31, 2020 | FLSA2020-19. Employers are not required to pay for an employee’s travel time between home and office where they choose to work remotely and in-person in the same day and they have time to perform personal activities when traveling. This situation may arise where an employee is working remotely but chooses to go into the office for part of the day.
• DEC 31, 2020 | FLSA2020-20. If a 24-hour caregiver works an expected number of hours, they are paid at one-half times the hourly rate for expected overtime hours, which meets the overtime pay obligation. If a 24-hour caregiver works more than the expected number of hours, they receive supplemental compensation at the rate of one and one-half times the hourly rate for unexpected hours worked over 8 hours in a day.
• JAN 15, 2021 | FLSA2021-3. Employees at “amusement or recreational establishments” (where the establishment exists for the purpose of amusement or recreation and is frequented by the public) may be exempt from federal minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA) if the employer is seasonal. To qualify as seasonal, an employer must satisfy either the Calendar Test (does not operate for more than seven months in any calendar year) or Receipts Test (average receipts for any six months in the prior year were not more than 33 1/3 percent of its average receipts for the other six months in the prior year). This opinion letter states that the accrual method of accounting (income deemed – not actually – received for accounting purposes at the time the good or service is provided) cannot be used to satisfy the Receipts Test for being a seasonal establishment under the FLSA.
• JAN 15, 2021 | FLSA2021-5. This opinion letter provides the proper calculation of overtime pay under the FLSA for tipped employees receiving both a tipped hourly wage for time worked as a server and a per shift wage for working as a bartender in the same week. The employee’s regular rate of pay must include both the tipped wage and the shift wage. Where an employee in a single workweek works at two or more different types of work for different non-overtime rates of pay, the employee’s regular rate of pay is the weighted average of the those rates. The regular rate of pay is the total compensation from all rates of pay divided by the total number of hours worked at all jobs.
• JAN 19, 2021 | FLSA2021-6. The FLSA’s “retail or service establishment” exemption may apply to Although staffing firms that recruit, hire, and place employees on assignments with clients may qualify as a “retail or service establishment” for the FLSA’s overtime exemption if (1) they sell goods or services, (2) 75% of sales are recognized as retail in the particular industry, and (3) 25% or less of its sales may be for resale; however, whether a particular employee of the staffing firm actually satisfies the overtime exemption still requires an individual analysis.
• JAN 19, 2021 | FLSA2021-7. Local small-town and community news source journalists may be creative or learned professionals qualifying for the minimum wage and overtime exemption under the FLSA.

On January 26, 2021, the current administration withdrew opinion letters FLSA2021-4 (tip pooling), FLSA2021-8 (food distributors as independent contractors), and FLSA2021-9 (tractor-trailer truck drivers as independent contractors) as having been issued prematurely because they were based on rules that have not gone into effect.

Action Items