Department of Labor Issues Two New Opinion Letters

The Fair Labor Standards Act (FLSA) sets forth the basic federal wage and hour laws. These laws provide numerous areas of guidance, including that workers must be paid minimum wage and that in general, all non-exempt workers must be paid overtime for hours worked in excess of 40 hours in any work week. However, the law is much broader than these two provisions, and many questions are raised concerning the practical implementation of these laws.

In order to help employers, employees and courts interpret the law, the Department of Labor (“DOL”) will routinely issue “opinion letters” providing guidance concerning certain aspects.

Most recently, the DOL discussed issues concerning “volunteers” and the “rate of pay” used to determine overtime pay.

As concerns volunteer work, the DOL reiterated that those workers who “without promise or expectation of compensation, but solely for his personal purposes or pleasure, worked in activities carried on by persons either for their pleasure of profit,” is outside of the act. In other words, the FLSA does not cover volunteer work. The bottom line of the letter is a determination on a case by case basis whether a worker is truly “volunteering” or is being coerced or otherwise pressure by their place of employment to provide the “volunteer” work.

Additionally, the DOL set forth guidance establishing that in determining the “average hourly rate” when calculating overtime (which is typically one and one-half times the average hourly rate), the rate should be calculated by adding up the employee’s total hours worked and dividing these by total hours worked for the week. While this is based on established principles, the DOL reminded employers that this calculation should be performed for each work week to avoid errors.

For more information or if you have any wage and hour questions, please contact the experienced Atlanta wage and hour lawyers at Buckley Bala Wilson Mew LLP for an immediate case evaluation.