As we reported last month, the U.S. Department of Labor (“DOL” or “Department”) kicked off the new year by publishing six Opinion Letters, four of them addressing specific topics related to Fair Labor Standards Act (“FLSA” or “Act”) compliance.
These Opinion Letters provide practical guidance responsive to real-world questions from individuals or organizations.
In its first Opinion Letter the Department addressed the inverse of a typical dispute over employee classification. As part of an internal restructuring, a company that previously had classified a Licensed Clinical Social Worker (“LCSW”) as exempt from the FLSA’s overtime requirements reclassified the worker as non-exempt. The LCSW asked the Department to weigh in on two questions: first, whether the LCSW’s role met the criteria for the learned professional exemption, and if so, whether the employer could nevertheless choose to classify them as non-exempt and pay them on an hourly basis.
The Department opined that the primary duties of the LCSW role likely satisfied the duties requirements for the learned professional exemption. However, the worker would not meet the exemption’s compensation requirements because the employer had changed the worker’s pay to hourly. This guidance is not particularly remarkable, and is consistent with prior guidance interpreting the learned professional exemption.
But the Department took its analysis a step further to point out that, “even if all the criteria for an FLSA...
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