The Higher Ed Workplace Blog

WHD Starts to Move on Guidance and Rules

On January 5, the Department of Labor (DOL)’s Wage and Hour Division (WHD) re-issued 17 opinion letters. As WHD states, “an opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.” These 17 letters were drafted at the end of the Bush administration but were withdrawn on March 2, 2009, as they were not yet mailed by the start of the Obama administration.

In June 2017, DOL announced that it would reinstate the issuance of opinion letters — a longstanding practice of DOL before it was eliminated during the Obama administration and replaced with broader “Administrator Interpretations” — to employers and employees regarding application of the Fair Labor Standards Act (FLSA). In the announcement, Secretary of Labor Alexander Acosta said that, “reinstating opinion letters will benefit employees and employers, as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes.”

While the 17 letters cover numerous industries, opinion letter FLSA2018-6 entitled “Coaches and the Teacher Exemption Under Section 13(a)(1)” is of particular importance to higher education. The letter, signed by then-Acting WHD Administrator Alexander J. Passantino, addresses the application of the teacher exemption to overtime pay of coaches at a local public school. The school employed no full-time coaches, instead relying upon community members to meet its coaching needs. According to the letter, the coaches spent most of their time instructing student athletes in the rules and fundamentals of their sports, with the balance of their time going to activities such as recruiting, supervising team members during trips to and from games, disciplining team members and accounting for equipment. On these facts, DOL concluded that the coaches qualified as exempt teachers.

In other FLSA-related developments, on December 14, the Trump administration released its Unified Regulatory Agenda and Regulatory Plan, providing the regulated public with information on regulations the federal government is currently considering and target dates for each agency and sub-agency’s regulatory actions. Of topline importance to CUPA-HR members is WHD’s target date (October 2018) for issuance of a Notice of Proposed Rulemaking (NPRM) on overtime. WHD states that the “NPRM will propose an updated salary level for exemption … informed by the comments received in response to the Request for Information.”

We will be following both of these developments closely in the months to come, but we caution that October 2018 is merely a target and that it is entirely possible that WHD issues the NPRM later.