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FLSA2009-6
January 14, 2009
Dear Name*:
This is in response to your request for an opinion regarding the status of
your client’s eight full-time pilots under the Fair Labor Standards Act (FLSA).
You ask whether the pilots are exempt under the learned professional exemption
set out in 29
C.F.R. § 541.301. *
Section 13(a)(1) of the FLSA provides a complete exemption from the minimum
wage and overtime pay requirements for any employee employed in a bona fide
executive, administrative, or professional capacity, as those terms are defined
in 29 C.F.R. Part 541. An employee may qualify for exemption if all of the
pertinent regulatory tests are met relating to job duties, salary level, and
compensation on a salary basis as discussed in the regulations.
Your client employs eight full-time pilots to service and fly its two jet
aircrafts (a Gulf Stream and a Citation-Excel) and one helicopter (medium
Sikorski S76A). The eight pilots are responsible for transporting the Company’s
executives, customers and guests as needed, for sales support and to board
meetings and operation facilities. The Chief Pilot and all of the Captains
(pilots ## 1 – 7) hold FAA Airline Transport Pilot Certifications; all of
the pilots (including the First Officer, pilot #8) hold commercial pilot licenses
with instrument and multi-engine ratings and each one meets or exceeds the
FAA’s requirements to qualify as a pilot-in-command.
In addition, the Chief Pilot serves as the immediate supervisor of the other
pilots and the flight attendants and serves on the department management team
as the representative for the pilots and flight attendants. As a manager
of the flight crews, the Chief Pilot also serves as the team leader, ensures
that any issues with direct reports are solved in a timely and amicable way,
and manages the crew members’ flight scheduling, training, vacations, and
unexpected personnel issues, e.g., sickness and crew rest/duty day concerns.
The Chief Pilot (who also possesses a flight instructor rating) is also responsible
for new pilot flight instruction. The base compensation for both the Chief
Pilot and the Standards Captain is salaried in excess of $100,000 per year
(along with a 15 percent bonus). The five Captains Pilots receive base compensation
of salaries in the mid- $80,000 to $90,000’s per year, with a 15 percent bonus.
The First Officer Pilot, who also is fully qualified under FAA standards to
serve as a pilot-in-command for the client’s jet aircrafts, but will not yet
be assigned as pilot-in-command due to the Company’s more stringent training
and experience requirements, receives base compensation in the $70,000’s with
a 10 percent bonus.
Although you have not specifically referenced the executive exemption, that
exemption may be relevant to your inquiry. The executive exemption is defined
as any employee:
-
Compensated on a salary basis at a rate of not less
than $455 per week;
-
Whose primary duty is management of the enterprise
or of a customarily recognized department or subdivision thereof;
-
Who customarily and regularly directs the work of two
or more other employees; and
-
Who has the authority to hire or fire other employees
or whose suggestions and recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees are given particular
weight.
29
C.F.R. § 541.100(a)(1) – (4).
It is not apparent from your description whether the Chief Pilot’s primary
duty qualifies as “management . . . of a customarily recognized department
or subdivision” of the employer’s enterprise or department. “Primary duty”
is defined in 29
C.F.R. § 541.700 as “the principal, main, major or most important duty
that the employee performs.” The amount of time spent performing exempt work
can be a useful guide in determining the primary duty of an employee, but
time alone is not the sole test. An employee who spends less than 50 percent
of the time performing exempt managerial duties may still meet the primary
duty requirement of the executive exemption if other factors support that
conclusion, as discussed in 29 C.F.R. § 541.700(b):
Factors to consider when determining the
primary duty of an employee include, but are not limited to, the relative
importance of the exempt duties as compared with other types of duties; the
amount of time spent performing exempt work; the employee’s relative freedom
from direct supervision; and the relationship between the employee’s salary
and the wages paid to other employees for the kind of nonexempt work performed
by the employee.
29 C.F.R. § 541.700(a).
Whether the flight crew constitutes “a customarily recognized department
or subdivision” within the employer’s management operations is a question
of fact. If the Chief Pilot is, in fact, actually in charge of managing a
recognized unit with a permanent status and a continuing function in the employer’s
organization as discussed in 29
C.F.R. § 541.103 and otherwise meets the primary duty requirement of “management”
(see 29
C.F.R. § 541.102), the Chief Pilot may be eligible for the executive exemption.
We also do not have sufficient information to determine if the Chief Pilot
is an employee “[w]ho has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees are given particular
weight.” 29 C.F.R. §§ 541.100(a)(4) and 541.105.
Only if the Chief Pilot in fact possesses such authority would the executive
exemption apply.
To qualify for the learned professional exemption, an employee’s primary
duty must be the performance of work requiring advanced knowledge in a field
of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction. See 29 C.F.R. § 541.301. The Department
has taken the position that pilots are not exempt as learned professionals.
We have maintained that aviation is not “a field of science or learning” and
that the knowledge required to be a pilot is not “customarily acquired by
a prolonged course of specialized intellectual instruction” within the meaning
of the regulations. See 69 Fed. Reg. 22,122, 22,156 (April 23, 2004
); Wage and Hour Opinion Letter FLSA-565 (Jan. 20, 1975) (copy enclosed).
The Wage and Hour Division, however, takes a position of non-enforcement
with regard to pilots and copilots of airplanes and rotorcraft who hold an
FAA Airline Transport Certificate or Commercial Certificate, and who
receive compensation on a salary or fee basis at a rate of at least $455 per
week, and who are engaged in the following activities:
-
Flying of aircraft as business or company pilots;
-
Aerial mineral exploration;
-
Aerial mapping and photography;
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Aerial forest fire protection;
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Aerial meteorological research;
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Test flights of aircraft in connection with engineering,
production, or sale;
-
Aerial logging, fire suppression, forest fertilizing,
forest seeding, forest spraying, and related activities involving precision
flying over mountainous forest areas;
-
Flying activities in connection with transmission tower
construction, transmission line construction, transportation of completed
structures with precision setting of footings, concrete pouring; or
-
Aerial construction of sections of oil drilling rigs
and pipe-lines, and ski-lift and fire lookout constructions.
See Wage and Hour Opinion Letter FLSA-505 (Feb. 7, 1992)
(copy enclosed); Wage and Hour Opinion Letter FLSA-585 (Sept. 2, 1975) (copy
enclosed); Wage and Hour Opinion Letter FLSA-565 (Jan. 20, 1975) (copy enclosed);
Wage and Hour Opinion Letter FLSA-387 (May 25, 1971) (copy enclosed).
This non-enforcement position does not apply to airplane and helicopter pilots
engaged in agricultural crop-dusting operations. This policy also does not
relieve an employer from compliance with the minimum wage and overtime pay
standards for support and maintenance personnel covered by the FLSA. In addition,
this non-enforcement position does not apply to employees, including pilots
and copilots, subject to the provisions of the McNamara-O’Hara Service Contract
Act, the Davis-Bacon Act, and the Contract Work Hours and Safety Standards
Act, nor relieve any employer from any obligation incurred under a collective
bargaining agreement or any liability incurred in a private suit under section
16(b) of the FLSA.
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your letter
might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issues addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department
of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
*
Unless otherwise noted, any statutes, regulations, opinion letters, or
other interpretive material cited in this letter can be found at www.wagehour.dol.gov.
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