Paul DeCamp Quoted in "New DOL Opinion Letters Tackle OT, Leave Issues"

The U.S. Department of Labor unveiled three new opinion letters on Tuesday, including one that says businesses should divvy up lump-sum bonuses that workers receive as an incentive for finishing a weekslong training period equally among each workweek when calculating overtime.

DOL Wage and Hour Division Administrator Cheryl Stanton penned the three opinion letters, two of which address issues related to the Fair Labor Standards Act and one that deals with the Family and Medical Leave Act. Such letters, which operate as general legal guidance but do not bind courts, are issued by the DOL in response to questions from individuals and employers affected by federal wage laws. They don’t identify their recipients but provide circumstantial information about them.

Paul DeCamp, co-chair of Epstein Becker Green’s wage-and-hour practice group and a former WHD administrator, told Law360that Tuesday’s batch of opinion letters are “a reminder of how these guidance documents normally function and have functioned throughout most of the Wage and Hour Division’s history,” while adding that they provide “discrete, largely uncontroversial technical assistance in a way that delivers clarity to both employers and employees.” …

One of the opinion letters tackled the issue of how employers should calculate workers’ overtime pay under the Fair Labor Standards Act in instances when they offer a nondiscretionary lump-sum bonus that is earned over time and isn’t tied to a specific pay period.

The letter posed a hypothetical scenario in which a business tells employees they will be eligible for a $3,000 bonus if they finish a 10-week training program and also sign up for an additional eight weeks of training. Employees in the hypothetical worked a fluctuating amount of overtime hours in given workweeks during the 10-week training period. …

The second opinion letter tackled the issue of whether money paid to educational consultants qualifies as a fee payment or salary for purposes of determining whether the consultants qualify for an FLSA exemption from minimum wage and overtime pay for administrative and professional employees.

The letter was written in response to a query by a company that employs educational consultants who offer services to schools nationwide on a project basis.

Stanton analyzed two examples offered by the company describing different types of payment arrangements for educational consultants. She concluded that each proposed payment method qualifies as salary-based payments, with the opinion letter going on to break down details about how such nonconventional payment structures line up with the FLSA’s requirements.

Of the two FLSA letters, DeCamp said that neither one “seems likely to generate significant push-back among stakeholders.”

“But each letter can be very informative, and therefore helpful, for a business or a worker facing the specific situation the letter addresses,” he added.