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Some still stand and some were withdrawn. Many of these apply to all employers; however some are by industry or function. These are all effective now unless otherwise noted. Here is a summary of some of the key opinions with a link to DOL letters.

Travel Time Payments | 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 on 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.

24-Hour Caregiver Overtime Rules | 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.

Seasonal Amusement or Recreational Federal Minimum Wage | 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.

Overtime Calculation for Tipped Employees | 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 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.

Minimum Wage and Overtime for Community Journalists | 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.

In addition to the above opinion letters, on January 26, 2021, the current administration withdrew four opinion letters. Letters regarding tip pooling (FLSA2021-4), food distributors as independent contractors (FLSA2021-8), overtime for staffing firms (FLSA 2021-6) and tractor-trailer truck drivers as independent contractors (FLSA2021-9) were withdrawn as having been issued prematurely because they were based on rules that have not gone into effect.

OneDigital’s team of compliance and HR leaders have your back to provide translations as new information is released and offer insights into other DOL rulings. Stay tuned for additional updates as the situation develops.