In addition to the significant opinion letter on independent contractor status discussed elsewhere in this E-Update, the Wage and Hour Division of the Department of Labor issued three other new opinion letters of limited general interest to employers. Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then rely on these opinion letters as guidance. Even though these do not seem to have general applicability, we summarize them here as follows:
FLSA2019-3: Under the “8 and 80” overtime rule, a hospital or residential care institution may enter into an agreement or understanding with its employees to pay overtime for all hours worked over 8 in a workday and over 80 in a 14-day period. In order to constitute a residential care institution, the facility must (1) have more than 50% of its income attributable to providing residential care to disabled or ill individuals; (2) if an institution for the residential care of emotionally disturbed persons, have more than 50% of its residents admitted by a qualified physician, psychiatrist, or psychologist; or (3) if a youth residential care facility, retain a qualified physician, psychiatrist, or psychologist who regularly provides therapy to adolescents comprising more than 50% of the residents at the facility. In the present case, however, insufficient facts were provided to allow the WHD to determine if the youth residential care facility in question met the requirements for any of the three scenarios.
FLSA2019-4: Under the FLSA, teachers in elementary or secondary schools are exempt from its minimum wage and overtime requirements. As the DOL notes, in order to be a teacher, the individual’s primary duty must be “teaching, tutoring, instructing or lecturing in the activity or imparting knowledge” as an employee of an “educational establishment,” which is any public or private educational institution. The DOL states that employees who teach remotely or online may qualify for the exemption. Applying these rules, the DOL found the “Nutritional Outreach Instructors” to meet this exemption in that they teach community members about healthy nutrition and cooking techniques over a 9-week period.
FLSA2019-5: The FLSA provides an overtime exemption for agricultural employees. By regulation and judicial precedent, agriculture is divided into primary (farming, which includes the raising of crops, livestock, bees, fur-bearing animals, or poultry) and secondary (activities performed by a farmer or on a farm incidental to or done in conjunction with farming) concepts. In order to be secondary, the activity must be (1) more akin to farming than manufacturing; (2) subordinate to the farming operation; and (3) not an independent business. Secondary activities include preparation for market and delivery to storage, market, or carriers.
The DOL found that “light processing” activities, in which a farm cuts or freezes its own fruit, vegetables, or meat without adding any ingredients, as well as packing, storing and transporting the items to market, do not constitute primary agriculture, but may be secondary agriculture. Cutting and freezing are methods of preservation and preparation for market. These activities, however, must be subordinate to its farming operations, and not amount to an independent business, in order to meet the exemption. Similarly, packing and storing activities are generally considered “preparation for market,” but those activities are only considered agriculture if the cutting and freezing activities that preceded it are also agriculture. Finally, the delivery activities may also be secondary agriculture, as long as it is performed by farm employees, and the preceding cutting, freezing, packing or storing activities constitute agriculture, as described above.