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March 2, 2009
Dear Name*:
Enclosed is the response to
your request for an opinion letter signed by the then Acting Wage and Hour Administrator
Alexander J. Passantino on January 16, 2009 and designated as Wage and Hour
Opinion Letter FLSA2009-31. It does not appear that this response was placed
in the mail for delivery to you after it was signed. In any event, we have
decided to withdraw it for further consideration by the Wage and Hour
Division. We will provide a further response in the near future.
The enclosed opinion letter,
and this withdrawal, are issued as official rulings of the Wage and Hour
Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259. See
29
C.F.R. §§ 790.17(d), 790.19;
Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir.
1990). Wage and Hour Opinion Letter FLSA2009-31 is withdrawn and may not be
relied upon as a statement of agency policy.
Sincerely,
John L. McKeon
Deputy Administrator for Enforcement
FLSA2009-31
This Opinion Letter is withdrawn. January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding
whether Consultants, Clinical Coordinators, Coordinators, and Business
Development Managers employed by your company qualify for exemption under
section 13(a)(1) of the Fair Labor Standards Act (FLSA). It is our opinion that they are
exempt administrative employees.
You state that the company provides temporary medical
professionals (TMPs), primarily registered nurses, to hospitals (client facilities).
The employees discussed below work at the company’s headquarters and help
support the TMPs and the client facilities. We understand the Consultants,
Clinical Coordinators, Coordinators, and Business Development Managers receive
at least $455 per week on a salary basis and, as discussed below, have
authority to make independent choices, free from immediate direction or
supervision, in matters of significance.
Consultants
The Consultants’ primary duties include: generating
referrals through networking, internet searches, and job fairs; determining
whether an individual has the skills and experience necessary to be a TMP;
determining the validity and appropriateness of candidate references;
determining through personal interviews the candidate’s work history, work
ethic, sincerity, credibility, interpersonal skills, strengths, weaknesses, and
ability to work successfully; recommending candidates for rejection; matching
candidates to the appropriate client facility; negotiating the TMP pay rates and
benefits package; and supervising and counseling TMPs to resolve such
non-clinical issues as housing complaints, timeliness of payroll, insurance
documentation, and attendance problems. In a discussion with Wage and Hour
Division (WHD) staff, you stated that the Consultants, after screening and
interviewing candidates for a specific position available in a client facility,
recommend the best candidate for hiring to the Clinical Coordinator. The
Clinical Coordinator then contacts the client facility to determine proper
fit. The Consultants’ recommendations for hiring are typically accepted. Once
a client facility decides to hire a TMP, Consultants are responsible for
ensuring completion of the hiring process. The Consultants then serve as
supervisors for the TMPs working at client facilities, working to resolve
issues that may arise between the TMP and the client.
Clinical Coordinators
The Clinical Coordinators’ primary duties include serving as
the company’s main resource on clinical issues and the expert on company
clinical requirements related to the licensing, certification, and amount of
experience necessary for TMP applicants based on state regulations and
individual hospital preferences; persuading client facilities to interview and
select candidates; making final determinations regarding the candidates’
employment eligibility; negotiating with client facilities for bonuses and
higher bill rates for exceptional candidates; taking a lead role in preparing
for reviews and audits conducted by hospital associations and the Joint
Commission for Accreditation of Healthcare Organizations (JCAHO); working with
client facilities to monitor the TMPs’ performance; serving as a second-line
supervisor to counsel and discipline TMPs regarding such clinical matters as
shortcutting protocol procedures and such behavioral issues as the TMP’s
unprofessional conduct toward the patient’s family or the head nurse; and
training Consultants and other employees. Clinical Coordinators serve as
primary representatives to the company’s client facilities. They must be
licensed nurses with at least three years of acute care experience.
Coordinators
Coordinators perform the same duties as the Clinical
Coordinators except that the Coordinators do not serve as the company’s primary
resource with respect to the clinical issues and requirements described above.
In your discussion with WHD staff, you noted that due to their many years of
experience, Coordinators can fulfill their job responsibilities without having
a registered nursing degree. Coordinators simply refer clinical questions with
which they are unfamiliar to the Clinical Coordinator.
Business Development Managers
The Business Development Managers’ (BDMs) primary duties
include: analyzing existing market conditions by geographic territory to
determine the need for TMPs, competitors’ capabilities, and competitive billing
and pay rates; analyzing the client facilities’ staffing needs, bill rate
tolerance, and contract expectations; preparing initial marketing materials
that are tailored to the client facilities’ expectations; developing,
preparing, submitting, and monitoring proposals in response to requests from
current and prospective client facilities; developing pricing strategies based
on market conditions, analysis of client facilities’ past and current service
activity, their ongoing clinical needs and tolerance for bill rate increases,
and the company’s desired revenue and margin requirements; negotiating
contractual terms and conditions of the staffing agreements; negotiating
revisions and writing addendums to current agreements; serving as liaison
between the client facility and the company to resolve service or billing
issues; and visiting current and prospective client facilities to develop or
enhance contractual relationships.
Section 13(a)(1) of the FLSA provides a minimum wage and
overtime pay exemption for any employee employed in a bona fide administrative
capacity as defined in 29 C.F.R. Part 541. An employee may qualify for the
exemption if the salary and duties tests are met.
Under 29
C.F.R. § 541.200(a), “employee employed in a bona fide administrative
capacity” means “any employee”:
(1) Compensated on a salary or fee
basis at a rate of not less than $455 per week . . . ;
(2) Whose primary duty is the
performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer’s customers; and
(3) Whose primary duty includes the
exercise of discretion and independent judgment with respect to matters of
significance.
Id. The phrase “work
directly related to the management or general business operations of the
employer or the employer’s customers” refers to work in such functional areas
as research, marketing, personnel management, and human resources. Id.; 29 C.F.R.
§ 541.201(b). Moreover, section 541.202(b)
cites several factors “to consider when determining whether an employee
exercises discretion and independent judgment with respect to matters of
significance,” including “whether the employee has authority to formulate,
affect, interpret, or implement management policies or operating practices;
whether the employee carries out major assignments in conducting the operations
of the business; . . . whether the employee has authority to commit
the employer in matters that have significant financial impact; . . .
whether the employee provides consultation or expert advice to management;
. . . [and] whether the employee investigates and resolves matters of
significance on behalf of management.”
Section 541.203(e)
further clarifies that “[h]uman resources managers who . . .
interpret or implement employment policies . . . generally meet the duties
requirements for the administrative exemption.” For example, “when the
interviewing and screening functions are performed by the human resources
manager or personnel manager who makes . . . recommendations for
hiring from the pool of qualified applicants, such duties constitute exempt
work.” Id.
Consultants
We believe that the Consultants’ primary duties of
screening, interviewing, and recommending candidates for hiring; supervising
and counseling TMPs to resolve such issues as housing complaints and timeliness
of payroll; and addressing client facility concerns regarding the TMPs’
attendance problems directly relate to the functional areas of personnel
management and human resources. Therefore, the Consultants’ primary duties
involve the “performance of office or non-manual work directly related to the
management or general business operations of the employer” and the employer’s
clients. 29 C.F.R. § 541.200(a)(2).
Moreover, we believe that the Consultants’ primary duties
“include[] the exercise of discretion and independent judgment with respect to
matters of significance.” 29 C.F.R. § 541.200(a)(3). As noted
previously, Consultants have authority to make independent choices, free from
immediate direction or supervision, in matters of significance. By screening,
interviewing, recommending for hiring, and negotiating the candidates’
compensation and benefits packages, Consultants have “the authority to affect,
interpret, or implement management policies or operating practices.” 29 C.F.R.
§ 541.202(b). As described in section 541.203(e), duties such as
screening, interviewing, and recommending for hire that are performed, for
example, by a human resources manager (as opposed to a personnel clerk),
constitute exempt work. As you represented to WHD staff, Consultants’ hiring
recommendations are generally followed by the company, an example of
Consultants’ independent decision-making authority. See 29 C.F.R.
§ 541.200(a); 29 C.F.R. § 541.202(b). Additionally, by supervising and
counseling TMPs and addressing client facility concerns to resolve the issues
noted above, Consultants “investigate and resolve matters of significance on
behalf of management.” 29 C.F.R. § 541.202(b).
Based on a review of the information provided, Consultants
meet the requirements of 29 C.F.R. § 541.200(a)(1)-(3). Therefore, it is
our opinion that the Consultants are exempt administrative employees. See Wage
and Hour Opinion Letter FLSA2005-45
(Oct. 25, 2005).
Clinical Coordinators and Coordinators
We believe that the Clinical Coordinators’ and the
Coordinators’ primary duties of working with client facilities to monitor TMPs’
performance; serving as second-line supervisors to counsel and discipline TMPs
regarding clinical and behavioral issues; and training Consultants and other
employees directly relate to the functional areas of personnel management and
human resources. See 29 C.F.R. § 541.201(b). Therefore the Clinical
Coordinators’ and the Coordinators’ primary duties involve the “performance of
office or non-manual work directly related to the management or general
business operations of the employer” and the employer’s clients. 29 C.F.R.
§ 541.200(a)(2).
Moreover, we believe that the Clinical Coordinators’ and the
Coordinators’ primary duties “include[] the exercise of discretion and
independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200(a)(3). By serving as the company’s primary resource on clinical
issues, Clinical Coordinators “provide[] . . . expert advice to management.”
29 C.F.R. § 541.202(b). Additionally, by taking a lead role in preparing
for reviews and audits conducted by hospital associations and the JCAHO,
Clinical Coordinators and Coordinators “carr[y] out major assignments in
conducting the operations of the business.” Id. Also, by serving as
second-line supervisors to counsel and discipline TMPs regarding clinical and
behavior issues, and training Consultants and other employees, Clinical
Coordinators and Coordinators “perform[] work that affects business operations
to a substantial degree.” Id. Finally, by making the final
determination regarding candidates’ employment eligibility and negotiating with
client facilities for bonuses and higher billing rates for exceptional
candidates, Clinical Coordinators and Coordinators have authority to
“interpret, or implement management policies or operating practices.” Id. Clinical Coordinators and Coordinators also assess client needs and serve as
primary contacts for clients, responsibilities that federal courts have found
relevant in assessing whether an employee exercises discretion and independent
judgment. See 69 Fed. Reg. 22,144 (preamble to Part 541 regulation).
Based on a review of the information provided, Clinical
Coordinators and Coordinators meet the requirements of 29 C.F.R.
§ 541.200(a)(1)-(3). Therefore, it is our opinion that Clinical
Coordinators and Coordinators are exempt administrative employees. See
Wage and Hour Opinion Letter FLSA2005-45 (Oct. 25, 2005).
Business Development Managers
We believe that the BDMs’ primary duties of analyzing
existing market conditions to determine the need for TMPs, competitors’
capabilities, and competitive billing and pay rates; and analyzing the client
facilities’ staffing needs, bill rate tolerance, and contract expectations,
among others, directly relate to the functional area of research. See 29
C.F.R. § 541.201(b). Additionally, the BDMs’ primary duties of preparing
initial marketing materials that are tailored to the client facilities’
expectations and visiting current and prospective client facilities to develop
or enhance contractual relationships directly relate to the functional area of
marketing. Id.
We also believe that the BDMs’ primary duties “include[] the
exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a)(3). BDMs “perform[] work that
affects business operations to a substantial degree” by analyzing market conditions
to determine the need for TMPs, competitors’ capabilities, and competitive
billing and pay rates; analyzing client facilities’ staffing needs, bill rate
tolerance, and contact expectations; and by developing pricing strategies based
on the analyses. 29 C.F.R. § 541.202(b). Additionally, by negotiating
contractual terms and conditions of the staffing agreements and negotiating
revisions to current agreements, BDMs have “authority to commit the employer in
matters that have significant financial impact.” Id. Also, by serving
as liaison between the client facility and the company to resolve service or
billing-related issues, BDMs “investigate[] and resolve[] matters of
significance on behalf of management.” Id.
Based on a review of the information provided, BDMs meet the
requirements of 29 C.F.R. § 541.200(a)(1)-(3). Therefore, it is our
opinion that BDMs are exempt administrative employees.
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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