April 2010 A SPECIAL BANKING AND FINANCIAL INSTITUTIONS ALERT: EXEMPT STATUS OF MORTGAGE LOAN OFFICERS

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1 Labor Employment e-alert April 2010 A SPECIAL BANKING AND FINANCIAL INSTITUTIONS ALERT: EXEMPT STATUS OF MORTGAGE LOAN OFFICERS For more information on this topic, contact: Joseph T. Porter Jr Kenneth H. Suelthaus W. Terrence Kilroy Anthony J. Romano Robert J. Hingula n March 24, 2010, the United States Department of Labor ( DOL ) withdrew two prior opinion letters regarding the exempt status of mortgage loan officers under the administrative exemption, and announced that the DOL no longer considers mortgage loan officers as bona fide administrative employees under 29 U.S.C. 213 (a)(1) of the Fair Labor Standards Act ( FLSA ), thus making them nonexempt employees entitled to overtime. The DOL s abrupt change in position on this issue will significantly impact mortgage lenders, financial institutions, and other employers in the financial service sector that have relied upon the DOL s prior determinations regarding the application of the administrative exemption to mortgage loan officers. The FLSA requires covered employers to pay employees overtime at a rate of one and a half times the employee s regular rate of pay for all 2009 Polsinelli Shughart PC KANSAS CITY ST. LOUIS CHICAGO DENVER PHOENIX WASHINGTON DC NEW YORK WILMINGTON DE OVERLAND PARK ST. JOSEPH SPRINGFIELD TOPEKA EDWARDSVILLE

2 hours worked in excess of 40 hours per week. However, this requirement is subject to a number of exceptions including exemptions for white collar executive, administrative, and professional employees. Under the FLSA, in order to qualify for the administrative exemption, an employee must: 1. Be compensated on a salary or fee basis at a rate not less than $450 per week, exclusive of board, lodging, or other facilities; 2. As his or her primary duty, perform office or non-manual work directly related to the management or general business operations of the employer or the employer s customers; and 3. As his or her primary duty, exercise discretion and independent judgment with respect to matters of significance. In the DOL s March 2010 Administrator s Interpretation, the DOL focused exclusively on the second factor. Specifically, the DOL focused on the production versus administrative dichotomy and determined that mortgage loan officers are production workers whose primary duty is making sales, as opposed to administrative workers whose work is directly related to the management or general business operations of their employer or their employer s customers. The DOL relied on the following factors in reaching its conclusion: Mortgage loan officers are trained primarily in sales techniques and are evaluated on the basis of their sales volume. The typical mortgage loan officer s primary job duties included collecting financial information from customers, entering the information into a computer program to determine particular loan products that might be available to the customer, and explaining the terms, advantages, and disadvantages of the available options to customers so that a sale could be made. Mortgage loan officers are paid primarily by commissions. Courts have repeatedly held that mortgage loan officers that work at their employer s place of business have a primary duty of sales. Because the DOL found that the second prong of the test was not satisfied, it did not analyze whether loan officers met the other two prongs of the administrative exemption. Page 2 of 5

3 Despite the blanket approach in the new DOL Administrator s Interpretation, it is important to recognize that overtime exemptions require a fact-intensive, individual analysis. The Administrator s Interpretation makes numerous assumptions about the typical duties of a mortgage loan officer, which may or may not be applicable industry-wide. It is important to note that in finding the administrative exemption inapplicable to the typical mortgage loan officer, the DOL did not preclude the application of other FLSA exemptions to this group of employees. For example, the DOL noted that many employers rely on the outside sales exemption for mortgage loan officers, and stated that this exemption may apply to mortgage loan officers depending on the factual circumstances. Furthermore, the exemption for highly compensated employees may apply to mortgage loan officers. In the end, each loan officer s duties and responsibilities will have to be individually analyzed to determine whether they fall under alternate exemptions under the FLSA. Finally, as an additional side note, employers must still ensure that their mortgage loan officers are receiving the applicable minimum wage for all hours worked. Simply paying mortgage loan officers a salary or solely on a commission basis will not comply with the FLSA if the employee s hourly rate calculates to an amount below the applicable state or federal minimum wage requirements. Employers must closely track all aspects of their mortgage loan officers wages and hours to ensure that the employer s pay practices are fully compliant with the FLSA and any applicable state wage and hour laws. FOR MORE INFORMATION If you have any questions about these changes or how they might impact you or your organization, please contact: Joe Porter Ken Suelthaus Terry Kilroy Tony Romano Robert Hingula The Labor and Employment practice group will provide these e-alerts as developments warrant to keep you informed. Page 3 of 5

4 Labor and Employment Attorneys W. Terrence Kilroy Practice Area Chair Anthony J. Romano Practice Area Vice-Chair Carol C. Barnett Andrea C. Bernica Jon A. Bierman Jack L. Campbell Jay M. Dade Monica M. Fanning Karen R. Glickstein Mark B. Grebel Elizabeth T. Gross Robert J. Hingula JoAnne Spears Jackson Jamie Zveitel Kwiatek Sang-yul Lee Gretchen E. Lipman Dona A. Nutini Eric E. Packel Holly M Perkins Elisa B. Reinsmith William S. Robbins, Jr Erin D. Schilling James C. Sullivan Christopher C. Swenson Michael H. Talboy Eric M. Trelz Judy Yi Brian J. Zickefoose About Polsinelli Shughart s Labor and Employment Group Employers, whether large or small, face an ever-growing web of workplace regulations and potential entanglements with employees. At Polsinelli Shughart PC, our Labor and Employment attorneys understand the complexity and sensitivity of employee relations and workplace issues. As exclusively management counsel, our attorneys have extensive experience providing employers with cost-efficient advice and aggressive defenses on employment and labor law matters. We have represented Fortune 500 corporations and locally owned entrepreneurial firms. We have a broad range of experience, ranging from Affirmative Action to Wage and Hour issues, through Labor Relations and Union Avoidance. With employment litigation and advocacy experience as our strength, preventing legal problems from arising is our goal. We provide practical advice based upon the law and a careful analysis of your employment policies and business philosophy. Our attorneys can often anticipate problems and assist to avoid potential litigation. To learn more about our services, visit us online at Page 4 of 5

5 If you know of anyone who you believe would like to receive our updates, or if you would like to be removed from our e-distribution list, please contact Therese O Shea via at Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli Shughart is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. Polsinelli Shughart is a registered trademark of Polsinelli Shughart PC. About Polsinelli Shughart PC With more than 490 attorneys, Polsinelli Shughart PC is a national law firm that is a recognized leader in the areas of business litigation, financial services, bankruptcy, real estate, business law, labor and employment, construction, life sciences and health care. Serving corporate, institutional and individual clients regionally, nationally and worldwide, Polsinelli Shughart is known for successfully applying forward-thinking strategies for both straightforward and complex legal matters. The firm can be found online at Page 5 of 5

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