The Acting Administrator for the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued two new opinion letters on Friday, December 21, 2018.

The first opines on whether a home health aide service’s compensation plan, which pays an average hourly rate that may vary from workweek to workweek, complies with the Fair Labor Standards Act (FLSA)., The employer stated that its home health aides travel between client locations during the workday and that the employer calculates weekly pay as follows: it multiplies an employee’s time with clients by the employee’s hourly pay rate, then divides the product by the employee’s total hours worked – including both client time and travel time. Using this calculation, the employer stated that a typical standard rate of pay is $10.00 per hour and that it paid overtime based on that same regular rate of $10.00. The WHD opined that, while the employer’s compensation plan complies with the FLSA’s minimum wage requirements, it might not comply with the FLSA’s overtime requirements if the actual regular rate of pay exceeds $10.00 an hour. The WHD emphasized that the regular rate of pay may not be arbitrarily chosen by an employer or employee, but rather is an “actual fact” based on “mathematical computation.” The WHD further explained, however, that the compensation plan would comply with the FLSA’s overtime requirements for employees with an actual regular rate less than $10.00 per hour as an employer may choose to pay an overtime premium in excess of what is required by law.

The second opinion letter deals with whether a person is a volunteer as well as applicability of the ministerial exception to members of an egalitarian religious commune. On the facts presented, the WHD explained that the members were not subject to the FLSA for two reasons. First the individuals did not expect to receive compensation or other benefits for work performed for a non-profit and, therefore, were volunteers. In addition, even if they could conceivably be considered employees under the FLSA, they fall squarely within the ministerial exception recognized in the unanimous Hosanna-Tabor Evangel. Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) decision. Although the subject matter of the opinion letter may not seem applicable to an ordinary private employer, the opinion letter emphasizes that volunteers working for a not-for-profit organization who do not expect to receive compensation or other benefits for the work they perform are likely “volunteers” and not employees. Thus, the opinion may have more broad application than just to religious entities.