Yesterday morning, I received a press release from the U.S. Department of Labor.
Five opinion letters
The U.S. Department of Labor announced five new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA):
- FLSA2020-6: Addresses whether salespeople who travel to different locations to sell products using their employer’s mobile assets qualify for the outside sales exemption under FLSA section 13(a)(1);
- FLSA2020-7: Addresses whether an automobile manufacturer’s direct payments to an automobile dealership’s employee, compensating the employee for work done on behalf of the dealership, may count toward the dealership’s minimum wage obligation to the employee under the FLSA;
- FLSA2020-8: Addresses whether salespeople who set up displays and perform demonstrations at various retail locations not owned, operated, or controlled by their employer to sell the employer’s products qualify for the outside sales employee exemption under Section 13(a)(1) of the FLSA;
- FLSA2020-9: Addresses whether emergency-management coordinators employed by a county government qualify for administrative exemptions under Section 13(a)(1) of the FLSA; and
- FLSA2020-10: Addresses the application of the retail or service commission sales exemption under Section 7(i) of the FLSA, where more than half of an employee’s compensation in the relevant representative period ultimately does not consist of commissions.
Unless you happen to be the CHRO for the county government entity that sells cars at various remote locations using mobile assets, these new opinion letters may not exactly be your rejuvenating elixir to replace your Friday coffee.
But, there was some other DOL news that may have you breathing a small sigh of relief if, by chance, your educated, well-intentioned wage-and-hour nerd skills fail to bail your business out of a wage-and-hour pickle.
50% off on wage and hour settlements
I got my hands on this Wage and Hour Division Field Assistance Bulletin. It says that if WHD is investigating an FLSA claim against your company, in most instances, it will no longer pursue pre-litigation liquidated damages.
Previously, for every dollar in back wages that your company owed for an FLSA wage-and-hour violation, you’d owe an additional dollar in liquidated damages. And that doesn’t include any assessment for civil money penalties.
Many employers will qualify.
And the latitude that the Department is providing here is hecka-broad! That is, starting July 1, the Department will not assess pre-litigation liquidated damages if any one of the following circumstances exists:
- there is no clear evidence of bad faith and willfulness;
- the employer’s explanation for the violation(s) show that the violation(s) were the result of a bona fide dispute of unsettled law under the FLSA;
- the employer has no previous history of violations;
- the matter involves individual coverage only
- the matter involves complex section 13(a)(1) and 13(b)(1) exemptions; or
- the matter involves State and local government agencies or other non-profits.
So, keep up the excellent work in keeping your house in order. But, should your company run afoul of the FLSA, you’ve got a decent chance of avoiding double damages.
That’s worth celebrating. And one of the many benefits of working remotely is that no one will see you do the happy dance, except the dog.