The following article first appeared in the News & Insights section of Carmody Torrance Sandak Hennessey’s website. It is reposted here with permission.
The U.S. Department of Labor Wage and Hour Division recently issued four opinion letters addressing recurring questions under the Fair Labor Standards Act.
The letters provide valuable insight into how the DOL interprets and intends to enforce the FLSA.
It is important to note, however, that these opinion letters do not override state laws that may provide greater protection for employees.
DOL confirmed that in certain circumstances an exempt employee may perform work in a separate, non-exempt position without automatically losing the exemption.
In the specific situation considered by the DOL, a hospital employed exempt nursing specialists and non-exempt hourly staff nurses.
Nurse specialists would often pick up shifts in the staff nurse role, typically on the weekend, working one or two 12-hour shifts in addition to their approximately 40 hours of work as a nurse specialist.
DOL assumed that the duties of the nurse specialist role constituted exempt work.
Based on this assumption and weighing the amount of exempt versus non-exempt work performed, DOL concluded that the “primary duty” requirement was met because a substantial majority of the employee’s time was spent performing the exempt work of a nurse specialist.
DOL also concluded that the salary basis test was met because nurse specialists were paid a salary for...
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