The United State Department of Labor has begun issuing administrator interpretations, which are intended to provide guidance to employers and employees on various issues from time to time. They have not been used n the recent past, but a new one yesterday shows that this is changing.
Specifically, the DOL has released an interpretation of exhisting law indicating that it views mortgage loan officers now to be non-exempt employees under the Fair Labor Standards Act, instead of exempt employees under the administrative exemption of the FLSA. This letter reverses two previous Administrator Letters on this subject.
And as noted by the Washington Labor & Employment Wire this represents a policy shift not only in the law but what process the DOL will be using going forward:
WHD will now issue Administrator Interpretations intended to be “general interpretations of the law and regulations, applicable across-the-board to all those affected by the provision in issue.” In response to requests for opinion letters, WHD will provide “references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented.”
So who does this cover? According to the DOL:
This Administrator’s Interpretation applies to employees who spend the majority of their time working inside their employer’s place of business, including employees who work in offices located in their homes, rather than mortgage loan officers who are customarily and regularly engaged away from their employer’s place of business. It also applies to employees who do not spend the majority of their time engaging in “cold-calling”, contacting potential customers who have not in some manner expressed an interest in obtaining information about a mortgage loan. However, because many of the duties of all mortgage loan officers are similar, cases arising in these other contexts are referred to for guidance and cited in this interpretation.
For employers in this area, this new guidance should demand your immediate attention. if you have employees who may be covered by this guidance, it is important to not only identify those individuals but also seek legal guidance on how to make any necessary changes.