OVERTIME STATUS OF MORTGAGE LOAN OFFICERS UNDER FLSA (Prepared in collaboration with Employment Law Compliance)

Transcription

1 OVERTIME STATUS OF MORTGAGE LOAN OFFICERS UNDER FLSA (Prepared in cllabratin with Emplyment Law Cmpliance) Cntents: General Cmments Differing Treatment fr Emplyees with the Same Title Applicatin f Interpretatin t Other Psitins Officer Status Ways Lan Officers May Retain Exempt Status Administrative Exemptin Basics Cmmercial vs. Individual Custmers Other Ptential Exemptins Issues Arising frm Changing t Nn-Exempt Status Cmputing Overtime A. GENERAL COMMENTS On March 24, 2010, the Department f Labr s Wage and Hur Divisin Deputy Administratr Nancy Leppink issued Administratr s Interpretatin N that, in effect, verturns agency guidance n hw mrtgage fficers and lenders are exempt frm the vertime requirements f the Fair Labr Standards Act under the administrative exemptin frm vertime. The industry was successful in btaining guidance in the 2004 revisins t the FLSA regulatins indicating that mrtgage lenders (and thers perfrming such duties regardless f titles) were generally exempt emplyees under the administrative exemptin s lng as their primary duty was nt was nt selling the emplyer s prducts. In additin, during the Bush Administratin, WHD issued tw Opinin Letters that supprted this psitin supprted this psitin. WHD s actin n the 24 th frmally rescinded the tw Opinin Letters and determined that generally mrtgage lan fficers are, in fact, selling their emplyers financial prducts. The Interpretatin was based n a review f case law that ABA believes presents a distrted view f the verall current judicial psitins n the law. Read the letter. Because the FLSA requires that exemptin determinatins are based n the duties and respnsibility f each specific psitin, jb titles dn t matter. Each psitin requires its wn review. With the ptential legal liability the banking industry nw faces as a result f the DOL interpretatin, ABA recmmends that banks cnsult with their legal cunsel t determine the apprpriate curse f actin. Technically, the exemptin standards changed n March 24, 2010, and Bank are liable fr unpaid vertime cmpensatin frm that date t the present. Whether t recnstruct hurs wrked during that time perid and make back wage payments, will turn n each individual bank s risk assessment. 1. Differing Treatment fr Emplyees with Same Title It is perfectly acceptable under the FLSA fr emplyees with the same title t be exempt frm the payment f vertime based n different FLSA exemptins. Similarly, emplyees with the same title may be exempt r nn-exempt. As stated abve, titles are irrelevant t the determinatin f exempt status, and yu are nt bligated t establish different titles. Hwever, frm a practical perspective, given the 1

2 different cmpensatin and timekeeping methds, banks may be better served by having different jb titles fr implementatin and administrative purpses. 2. Applicatin f Interpretatin t Other Jbs WHD s March 24 th interpretatin specifically addresses mrtgage lan fficers. Hwever, the principles it espuses cncerning the prductin vs. administratin dichtmy culd well apply beynd the mrtgage lan fficer categry. Lan Underwriters. The March 24 th interpretatin desn t specifically address underwriters. Hwever, in Nvember 2009 the Secnd Circuit in Whalen v. J.P. Mrgan held that a lan underwriter emplyed at J.P. Mrgan Chase did nt qualify fr the administrative exemptin frm the vertime requirements f the Fair Labr Standards Act because his wrk invlved the prductin f lans the fundamental service prvided by the bank, rather than exempt administrative wrk. (The bank sught review by the Supreme Curt, and ABA filed a friend-f-the-curt brief in the case, but the Supreme Curt declined t review it.) The Secnd Circuit described the emplyee s duties as fllws: [He] evaluated whether t issue lans t individual lan applicants by referring t a detailed set f guidelines, knwn as the Credit Guide, prvided t him by Chase. The Credit Guide specified hw underwriters shuld determine lan applicant characteristics such as qualifying incme and credit histry, and instructed underwriters t cmpare such data with criteria, als set ut in the Credit Guide, prescribing what qualified a lan applicant fr a particular lan prduct... An underwriter was expected t evaluate each lan applicatin under the Credit Guide and apprve the lan if it met the Guide's standards. If a lan did nt meet the Guide's standards, certain underwriters had sme ability t make exceptins r variances t implement apprpriate cmpensating factrs. Credit analysts. The Department f Labr did nt address the exempt status f credit analysts in cnnectin with this recent Administratr s Interpretatin. Credit analysts may qualify fr the administrative exemptin, but that will turn n whether thse individuals exercise independent judgment and discretin. (See the links in the exemptin chart fr a discussin f this duty.) The exempt status f credit analysts varies widely frm ne bank t anther. The same analysis wuld apply t lan cllectrs. Lan Prcessrs. The recent interpretatin did nt specifically address the exempt status f lan prcessing emplyees. Thse emplyees theretically culd qualify fr the administrative exemptin, but that will rarely be the case. Lan prcessing emplyees d nt exercise discretin, typically, as that term in defined by DOL. Insurance agents. The ratinale cntained in the Interpretatin wuld apply t insurance agents ffering insurance prducts t individuals. We have already seen the Interpretatin extend t financial advisrs wh supprt individuals. We haven t seen DOL mve against insurance agents yet, but the interpretatin wuld appear t apply. 3. Officer status within a bank has n bearing n exemptin status. 4. Vlunteer activities. If an emplyee is vlunteering with a civic rganizatin, fr the purpses f prspecting fr business, sales wrk, r public relatins fr the Bank, that time will nevertheless be viewed as hurs wrked by the Department f Labr. While we understand characterizing this time as vlunteer activities, fr mst cmmunity banks thse activities directly relate t sales effrts, and therefre hurs wrked will becme an issue. 2

3 B. WAYS LOAN OFFICERS MAY RETAIN EXEMPT STATUS 1. Administrative Exemptin Basics T qualify fr the administrative emplyee exemptin, all f the fllwing tests must be met: The emplyee must be cmpensated n a salary basis (as defined in the regulatins) at a rate nt less than $455 per week; The emplyee s primary duty must be the perfrmance f ffice r nn-manual wrk directly related t the management r general business peratins f the emplyer r the emplyer s custmers; and The emplyee s primary duty includes the exercise f discretin and independent judgment with respect t matters f significance. Emplyees wh are cmpensated whlly by cmmissins will nt satisfy any exemptin except the utside sales exemptin. T qualify fr ther exemptins, such emplyees must receive a guaranteed draw f $455/week t satisfy the salary basis test. Primary duty means the principal, main, majr r mst imprtant duty that the emplyee perfrms. Determinatin f an emplyee s primary duty must be based n all the facts in a particular case, with the majr emphasis n the character f the emplyee s jb as a whle. Directly Related t Management r General Business Operatins. T meet the directly related t management r general business peratins requirement, an emplyee must perfrm wrk directly related t assisting with the running r servicing f the business, as distinguished, fr example frm wrking n a manufacturing prductin line r selling a prduct in a retail r service establishment. An emplyee may qualify fr the administrative exemptin if the emplyee s primary duty is the perfrmance f wrk directly related t the management r general business peratins f the emplyer s custmers. Thus, emplyees acting as advisrs r cnsultants t their emplyer s clients r custmers as tax experts r financial cnsultants, fr example may be exempt. Discretin and Independent Judgment. In general, the exercise f discretin and independent judgment invlves the cmparisn and the evaluatin f pssible curses f cnduct and acting r making a decisin after the varius pssibilities have been cnsidered. The term must be applied in the light f all the facts invlved in the emplyee s particular emplyment situatin, and implies that the emplyee has authrity t make an independent chice, free frm immediate directin r supervisin. The term matters f significance refers t the level f imprtance r cnsequence f the wrk perfrmed. An emplyee des nt exercise discretin and independent judgment with respect t matters f significance merely because the emplyer will experience financial lsses if the emplyee fails t perfrm the jb prperly. 2. Serving Cmmercial vs. Individual Custmers Under the FLSA regulatin n the administrative exemptin, an emplyee may be perfrming wrk assciated with the general business peratins if he/she is serving the emplyer s custmers. The interpretatin is the first time DOL has distinguished between individual and cmmercial custmers, when interpreting the administrative exemptin standard. Since individuals cannt have general business peratins, DOL is nw making this distinctin. Banks will need t evaluate the primary duty fr all f yur lenders, and distinguish between their wrk fr individual custmers and their wrk fr business custmers. 3

4 Fr a lan fficer t be exempt under the administrative exemptin, his/her primary duty wuld need t be supprting cmmercial custmers. Typically, an emplyee s primary duty means the activity he spends mst f his time n. In additin, the emplyee wuld have t exercise the discretin required by the administrative exemptin. If an emplyee s primary duty invlves supprting individuals, then the administrative exemptin will nt be available. Mrtgage and agricultural lans culd be fr individuals r fr businesses, depending upn the scenari. Regardless f lan apprval authrity, if the mrtgage lan fficer fcuses n satisfying individual custmers, he/she will nt satisfy the administrative exemptin standard. Hwever, if a lan fficer has authrity f $50,000 r mre (which we wuld expect), that authrity level wuld likely be sufficient t satisfy the discretin standard, assuming ther exemptin requirements are met. 3. Other Ptential Exemptins Other ptential exemptins include the Outside Sales Exemptin, the Executive Exemptin and the Highly-Cmpensated Emplyee Exemptin. We have attached a chart that summarizes the requirements f the varius exemptins alng with links t DOL summaries abut them. If an emplyee qualifies fr ne f these exemptins, they will nt have t maintain time recrds. Outside Sales Exemptin. This exemptin requires that the emplyee makes sales custmarily and regularly away frm emplyer s place f business and that includes hme r any ther fixed site. The utside sales exemptin is available even if the emplyee is paid slely n cmmissin and even if the emplyee des nt exercise independent judgment and discretin. Imprtantly, the utside sales exemptin will turn n where the emplyee actually wrks, as ppsed t what the bank says in the psitin descriptin, plicies and prcedures r ther dcuments. Mandating that the emplyee NOT spend time at a branch will nt change that equatin. The questins are: (1) where des the emplyee actually wrk, and (2) what type f wrk is actually perfrmed by the emplyee. That said, an individual culd have a desk and an ffice and still qualify fr the utside sales exemptin. Wrk perfrmed in the ffice will be cnsidered directly related t utside sales activity if the tasks invlve planning fr utside sales activity r dcumenting the results f utside sales activity. Executive Exemptin. This exemptin requires that (1) the emplyee s primary duty is managing the business r subgrup, (2) he/she regularly supervises at least 2 full-time emplyees, and (3) has authrity/recmmendatin t hire/fire. If the emplyee has as his r her primary duty, mrtgage lending, then the executive exemptin wuld nt apply, even if the individual directs the wrk f tw r mre emplyees. S the issue is defining the primary duty fr these individuals, wh serve in multiple rles. Highly Cmpensated Exemptin. This exemptin requires that the emplyee be paid at least $100,000 per calendar year ($455 per week n a salary basis), and perfrm ne f duties f an exempt executive, administrative r prfessinal. Fr smene t qualify fr that exemptin in calendar year 2010, their earnings in calendar year 2010, will need t meet the $100,000 threshld. 4

5 If, as yu get t the end f calendar year 2010, yu find that emplyee is belw that threshld, t maintain the exemptin the bank has t make up the difference between what the emplyee has earned and $100,000. In ther wrds, if yu get t the end f the year, and an emplyee is at $92,000, yu culd pay them makeup pay f $8,000 and maintain the exemptin fr If yu d nt supply the makeup payment, the individual will be nn-exempt fr all f 2010, and yu wuld need t cmpute vertime cmpensatin earned in the year, accrdingly. C. ISSUES ARISING FROM CHANGING TO NON-EXEMPT STATUS 1. Restricting Overtime An emplyee is nt entitled t any vertime cmpensatin if he/she desn t actually wrk mre than 40 hurs in a wrk week. If a lan fficer s duties can be managed t stay within that 40 hur threshld, n vertime cmpensatin will be required. But t achieve this, banks will need t Implement a clear plicy and cmmunicate that plicy, whereby mrtgage lan fficers MUST btain advanced supervisry apprval befre wrking mre than 40 hurs in a wrk week; Implement a plicy clearly defining the time that needs t be reprted by mrtgage lan fficers as hurs wrked; Ntify its management team, that managers cannt permit individuals t fail t recrd any and all wrk time. This cmbinatin f plicies and management practices will limit vertime hurs wrked by mrtgage lan fficers, and thereby limit vertime cmpensatin bligatins. If an emplyee perfrms wrk cntrary t this plicy, such as respnding t s after hurs, the emplyee must still be paid fr all time wrked. The bank can discipline the emplyee, up t and including discharge, fr a vilatin f the bank plicy. Hwever, again, the emplyee has t be paid fr all hurs wrked. 2. Fluctuating Wrkweek The Fluctuating Wrkweek Pay Plan is a technical Plan available under the FLSA and defined in DOL regulatins at 29 C.F.R Banks can qualify fr the fluctuating wrkweek and still pay mrtgage lenders n a cmmissin basis r guaranteed draw plus cmmissins as fllws. If emplyees understand that any salaried payment and any cmmissin payment is intended t reward them fr all hurs wrked, then the required vertime premium will be calculated at half time rates. The salary and the cmmissins will serve as the base cmpensatin fr all hurs wrked, including vertime hurs. Therefre, the vertime payment will cnsist f the additinal half time f the effective hurly rate f pay fr each vertime hur wrked. The requirements f this Pay Plan have been interpreted differently by federal curts acrss the cuntry. Therefre, prir t implementing this Pay Plan, the bank shuld btain specific advice frm emplyment law cunsel. 5

6 D. CALCULATION OF OVERTIME FOR NON-EXEMPT LOAN OFFICERS Nn-exempt emplyees will be entitled t vertime cmpensatin, based upn any salary, guarantee, and cmmissins earned fr wrk perfrmed in the week. Cmpensatin may be paid n a weekly r mnthly basis. Cmmissins cannt be cnsidered discretinary and will factr int the vertime premium due. Since cmmissins will vary and hurs wrked will vary, there is n permissible way t maintain a cnsistent regular rate f pay, frm ne mnth t anther. Nn-exempt lan fficers are entitled t minimum wage in all wrk weeks. If an emplyee nly wrks a certain number f hurs, fr example 30 hurs, yu nly need t pay them fr 30 hurs. N vertime wuld be required because vertime is required nly fr hurs wrked in excess f 40 hurs/week. 1. Calculating the Hurly Base Cmpute the ttal cmpensatin earned by the emplyee fr wrk perfrmed in a given week r a given mnth, and then cmpare ttal cmpensatin against ttal hurs wrked in the perid t cmpute the regular rate f pay. Fr lan fficers cmpensated n the basis f cmmissin nly, the hurly rate is cmputed by taking ttal cmmissins earned in the perid and dividing that by the ttal number f hurs wrked in that perid. 2. Calculating Overtime Overtime pay is calculated based upn the base and cmmissin payments received by the emplyee, fr wrk perfrmed during the week(s) r mnth in questin. The vertime rate is ne-half f the effective hurly rate f pay f the emplyee and is paid fr each hur wrked in excess f 40 hurs per week. Example: Assume a lan fficer is paid a guaranteed draw f $500 per week, and cmmissins based n a schedule t the extent that year-t-date cmmissins earned by the lan fficer exceeds year-t-date guaranteed draws paid t the lan fficer. Yu may deduct guaranteed draws and vertime prir t making cmmissin payments, if yur plicy prvides fr such treatment. S, if the lan fficer receives the $500 per week draw and receives cmmissins f $500 fr wrk perfrmed in that same week, his/her ttal cmpensatin fr the week wuld be $1,000. If the persn wrked 50 hurs in the week, yu wuld cmpute the regular rate f pay by taking the $1,000 and dividing it by 50 hurs, t arrive at a regular rate f $20 per hur. The emplyee wuld be entitled t half that regular rate ($10 per hur) fr each f the 10 vertime hurs wrked, r an additinal $100 fr that wrk week. When mrtgage lan fficers receive their quarterly incentive, the bank will have t cmpute the vertime premium due n that quarterly incentive, based upn the number f vertime hurs wrked in that calendar quarter. By mving t nn-exempt status, vertime premiums are als due n these quarterly cmmissined r incentive payments. Unfrtunately, the vertime payment due will vary with the hurs wrked by emplyees and the cmpensatin received by thse emplyees. Therefre, a manual calculatin will be necessary. Overtime cmpensatin needs t be paid, at the time the figure is capable f being cmputed. Therefre, when cmmissin r incentive payments are made (weekly, mnthly, quarterly, etc.), the cmpensatin figure will be knwn, the vertime hurs wrked will be capable f calculatin, and the vertime premium shuld be calculated and paid. Any vertime premium due n hurly, salary, r draw payments, shuld als be made at the time the cmpensatin is delivered t the nn-exempt emplyee. 6

7 3. Deductins Prir t Cmmissin Payments r in Subsequent Perid Yu may deduct salary and vertime cmpensatin, prir t paying cmmissins t lan fficers. The cmmissin payment is a functin f cntract, and the bank has the discretin t define when cmmissin payments will be extended t emplyees. In additin, yu may recver draw advances frm cmmissins earned in subsequent perids. The issue is t make sure that yur cmmissin plicy is clear in terms f treatment and recvery f these draws. 7