The Wage and Hour Division (WHD) recently released and posted its first opinion letters since May 2007. The first two opinion letters construed the executive and professional overtime exemptions and the third opinion letter clarified how volunteers can receive limited compensation.In its August 23, 2007 letter, the WHD determined that court reporters are not exempt from overtime under the Fair Labor Standards Act (FLSA). See DOL, Wage & Hour Div., Op. Letter 2007-2NA (Aug. 23, 2007). Court reporters do not qualify for the executive exemption because they do not supervise two or more full-time employees and they do not qualify for the professional exemption because their work does not require advanced knowledge “customarily acquired by a prolonged course of specialized intellectual instruction.” The WHD explained that “[w]ork that can be performed by employees with education and training that is less than a required bachelor’s degree in a particular discipline generally does not qualify as learned professional work under the regulations.”

In its September 17, 2007 letter, the WHD further refined the executive exemption by finding that field inspectors for a membership-based cattle producers association were exempt executives. See DOL, Wage & Hour Div., Op. Letter 2007-11 (Sept. 17, 2007). The association had requested guidance on whether its field inspectors, who oversee subordinate market inspectors, were non-exempt under 29 C.F.R. § 541.3(b)(1), which states that the overtime exemptions “do not apply to … inspectors … who perform work such as … conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; … preparing investigative reports; or other similar work.” The WHD stated that the field inspectors in question “differ from the inspectors described in § 541.3(b)(2), because the Field Inspectors’ primary duty is management of a customarily recognized department, not duties related to investigations.” The WHD emphasized the importance of the inspectors’ primary duty in making the determination.

Finally, on September 17, the WHD clarified what kind of compensation volunteer firefighters could receive under the FLSA. See DOL, Wage & Hour Div., Op. Letter 2007-3NA (Sept. 17, 2007). The WHD found several kinds of compensation valid, including: (1) tuition to pay for the Fire Academy and Fire School; and (2) life insurance, a disability policy, and a monthly contribution of $100 to the state-created retirement fund. However, the WHD opined that a $550 stipend for income lost from regular employment is probably invalid because “the purpose of this payment is specifically to compensate the firefighters for their lost days of paid work.” Additionally, the WHD expressed doubt as to whether a $19.72 per call stipend, ostensibly paid to cover volunteers’ incidental costs, constitutes a “nominal payment” under the regulations. Under the WHD’s 20 percent rule, “the Department will presume the fee paid is nominal as long as it does not exceed 20 percent of what the public agency would otherwise pay to hire a full-time … advisor for the same services.” However, the WHD could not apply the 20 percent rule to the firefighters because it did not have sufficient knowledge of what paid-firefighters received.