Earlier this month, the Wage and Hour Division of the Department of Labor reissued 17 opinion letters from the Bush administration.  The letters provide employers important guidance on a wide-range of issues under the Fair Labor Standards Act.

The reinstatement marks the first publication of opinion letters since the DOL announced last June that it would bring back that form of guidance.  The Obama administration had eliminated the practice and withdrawn many existing opinion letters, including many of those reissued this month.

The reinstated letters do not upend any existing laws, but they provide important guidance and a possible safety net to employers facing similar situations. Many of the reinstated letters concerned application of Section 13(a)(1)’s overtime exemption for executive and administrative employees.  The letters also discussed whether certain bonuses must be included in the regular rate for purposes of calculating overtime and whether certain on-call time qualified as compensable working hours.

The letters contain a cover letter noting that someone had specifically asked the DOL to reissue that particular opinion letter.  Thus, employers who would like to rely on previously withdrawn opinion letters should consider asking the DOL to reissue them under its new policy.

On August 31, a Texas federal court struck down the Obama-era Department of Labor rule that significantly increased the salary threshold for the white collar exemptions to overtime pay. The court temporarily enjoined the rule in November 2016, and this latest ruling makes that decision final (save for an unlikely appeal).

The court ruled that the DOL “does not have the authority to use a salary-level test that will effectively eliminate the duties test” set forth in the Fair Labor Standards Act.

Notably, new Secretary of Labor Alexander Acosta issued a request for information on the DOL’s overtime rules in late July.  The request solicited several comments on whether the DOL should update the current $23,660 salary threshold.  So while the Texas court’s ruling gives employers some temporary certainty on overtime exemptions, it remains to be seen what the Trump Administration’s DOL will do.

Overtime claims continue to dominate class action filings and cause significant exposure for companies in all industries.  In July alone, plaintiffs filed more than 200 class action complaints alleging overtime violations in federal courts across the country (not counting the number also filed in state court).  And because courts calculate back wages at time-and-a-half the regular rate, plus liquidated damages and other penalties, overtime mistakes can cause significant damage to a company’s bottom line.

This post kicks off a series for Steptoe’s Labor & Employment blog on the top five overtime pay violations alleged in class action complaints. The first in the series focuses on one of the most common (and most expensive) kinds of overtime blunders: misclassification of employees as exempt.

Continue Reading OT Series Kickoff: Misclassification of Exempt Employees