Guidance Search

Premium pay is provided to employees for Sunday work. Individuals are compensated on the basis of a fluctuating workweek salary pay plan 778.302 and 778.303 render invalid

The application of the fiduciary responsibility provisions of sections 402, 403 and 405 of ERISA to the proposed establishment and subsequent investments of a real estate equity fund. Specifically, if designated under the Investment Management Agreement or Trust Agreement, whether sections 402, 403, and 405 of ERISA would preclude the Frank Russell Trust Company from acting as a Trustee or Investment Manager of the Separate Plans and, as Commingled Trust Trustee with respect to the Real Estate Equity Fund. 

Whether an Individual Retirement Account (IRA) payroll deduction program would constitute an employee pension benefit plan where the IRAs are with a bank which handles a major portion of the Company's banking, is a principal lender to the Company and will soon lend additional funds through the purchase of Industrial Revenue Bonds (IRBs) for a significant dollar amount. 

Comparison to baseline audiograms and retest audiograms - [1910.95]

OSHA requires a safety net unless the employer complys with one of the options allowed in 29 CFR 1926.105(a). - [1926.105]

Whether the arrangement described in the 403-B7 Group Custodial Account Agreement (the Agreement) would constitute a program described in Department of Labor regulation 29 C.F.R. §2510.3-2(f) related to tax-sheltered annuities and, therefore, would not be covered by title I of ERISA.

Whether the Federation of Tax Administrators Staff Pension Plan is a governmental plan within the meaning of section 3(32) of ERISA. 

Driver with no work has the option to leave the site but will incur incident of tardiness. Driver could also choose to engaged to wait and is not paid for waiting. Section 785.14

No Employment relationship where children are working with their parents' consent to pay restitution, are not displacing regular workers or impinging on employment opportunities of others, and such work is performed under the jurisdiction and pursuant to the order and subject to the protection of the court.

Evaluation of variance application requesting the use of proof coil and high test chain slings under certain procedures. - [1910.184(e)]

Employee noise exposure assessment records are part of audiometric test record. - [1910.95]

Whether the Employee Benefit Plan of the United Way of Greater New Haven, Inc., and Affiliated Agencies (the EBP) is a single employee pension plan as defined by section 3(2)(A) of ERISA, and whether it must file an audited financial statement under section 103(a)(3)(A) of ERISA and Department of Labor regulation 29 C.F.R. §2520.104-46.

Whether certain benefit programs sponsored by the Legal Services Nationwide Employee Benefits Organization, Inc. (NEBO), are employee welfare benefit plans within the meaning of section 3(1) of ERISA.

Requirements for the use of stilts in the construction industry. - [1926]

Noise regulations apply to all places of entertainment. - [1910.95]

Whether the retention of an investment manager who has pension funds in a master trust (Common Trust) with other parties in interest and fiduciaries of the Common Trust and the payment from the Common Trust of the direct expenses of Investment allocable to the Common Trust for investment management services performed (which expenses include the reasonable compensation of employees of Investment) are prohibited transactions under section 406 of ERISA and section 4975 of the Internal Revenue Code of 1954 (the Code).

Methods of training for microprocessor audiometer technicians. - [1910.95]

An explanation of the employers responsibilities under the lead standard. - [1910.1025]

Whether stop-loss insurance contracts sold to Figgie International Inc. by Colony Insurance Company, which is wholly owned by a Figgie subsidiary, to pay benefits under the Figgie International Inc. Family Protection Plan (the Family Plan) and under the Figgie International Inc. Disability Plan for Salaried Employees (the Disability Plan) after the applicable Plan has paid benefits up to a certain specified dollar amount are "life insurance, health insurance or annuity contracts" as that term is used in the Department of Labor’s  PTE 79-41, which provide a class exemption from sections 406(a), 406(b)(l) and (b)(2) of ERISA.

Company using tip pool arrangement that is not in compliance with the Act's monetary requirements. Determining an alternative tip pool.

Whether the Investor’s Syndicate of America (ISA) is a “bank or similar financial institution within the meaning of section 408(b)(4) of ERISA and the face-amount certificates issued by ISA to the Employees’ Incentive and Thrift Plan of Investors Diversified Services Inc. and its Subsidiary and Associated Companies (the Plan) are “deposits which bear a reasonable interest rate” within the meaning of the same section  of ERISA.

Electronic designer works within the drafting department to guide the drafting activities and procedures necessary for the design and manufacturing of printed circuit boards. Electronic designer would not qualify for exemption as a bona fide executive employee since his primary duty does not consist of the management of the enterprise.

Petroleum asphalt removed from coverage under the Coal Tar Pitch Volatiles Standard. - [1910.1000]

Use of "Light Duty" Pneumatic Tackers (Staplers) Without Pressure Release Levers. - [1910.243]

An electroacoustic ear can be used for daily testing of an audiometer. - [1910.95]

No time limit from date of annual audiogram to standard threshold shift determination. - [1910.95(g)(1)]

Interpretations of the terms "large quantity" and "transfer". - [1910.106]

Paint thinner can be stored in approved plastic one-gallon containers. - [1910.106(d)(2)]

The hearing conservation amendment does not cover construction or agriculture. - [1926.52]

Whether the Ryland Group, Inc. Health Benefit Plan, which is self-funded up to a specified amount, is an employee welfare benefit plan as defined by section 3(1) of ERISA.

Whether the Individual Retirement Accounts (IRAs) offered by the Equitable Life Assurance Society of the United States to members of certain professional associations are employee pension benefit plans within the meaning of section 3(2) of ERISA.

Plan's proposed bonus payments are based on worker efficiency, i.e., productivity. Such bonus payments are not excluded from the regular rate computation. In this regard, see Section 778.211

The work performed by the quality field representative does not require knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course.

Interpretation of 1910.107 as it applies to glue spraying operations. - [1910.107(m)]

Informing BAT staff of minimum wage exemption for apprenticeship

If after hours' grievance meetings are compensable hours for health care institution.  Voluntary participation in labor-management committees, such as the grievance meeting, held outside of regular working hours is not considered hours worked.

Whether a retirement and death benefit arrangement (the Plan) for members of the Denver Fire Fighters Protective Association (the Association), is not  a governmental plan but an employee benefit plan covered by Title I of ERISA.

Whether (1) each bank that provides employee benefits through the Wisconsin Bankers Association Insurance Trust Fund (the Trust) establishes its own separate employee welfare trust within the meaning of section 3(1) of ERISA, (2) the Trust is  an employee welfare benefit plan under ERISA section 3(1) and (3) whether the Trust is a trust established under one or more employee benefit plan within the meaning of ERISA section 514(b)(2)(B) and not engaged in the business of insurance under the law of any state.

Whether Capital Trust Company, a trust company subject to supervision and examination by the Superintendent of Banks of the State of Oregon as a financial institution will be a “bank” for purposes of the Department of Labor’s PTE 80-51, when it acts as a trustee under a common trust fund established for investment by employee benefit plans.

Clarification relative to scaffold heights under 10 feet. - [1926.451]

Clarification on physical qualifications for crane operators. - [1910.179(b)(2)]

Application of Title III CCPA garnishment limits to court ordered program for adjudicated juvenile property offenders.

Can employer recover credit card tips which were advanced to employees, either by payroll deduction or directly from tipped employees, because a credit card charge was uncollectable. Tips should be paid on next regular pay day and may not be held by the employer while waiting to be reimbursed by the credit card company.   Section 3(m)

Whether the prohibited transaction provisions of sections 406 and 407 of ERISA apply to certain transactions involving the Husky Oil Company, the Employees’ Retirement Plan of Husky Oil Company (Retirement Plan) and the Employees’ Pension Plan of Husky Oil Company (Pension Plan) and the predecessor to both the Retirement and Pension Plans.

Whether under certain circumstances a payroll deduction program for an Individual Retirement Account (IRA) offered by Madison National Bank will be an employee pension benefit plan within the meaning of section 3(2) of ERISA, what constitutes an affiliate of an employer, and when an employer is not considered to have endorsed an IRA program under Department of Labor’s regulation 29 CFR section 2510.3-2(d).

Whether the Individual Retirement Account (IRA) payroll deduction program adopted by Cascade Natural Gas Corporation (Cascade) is an employee benefit plan within the meaning of section 3(3) of ERISA.  Specifically, whether the escrow account set up for the deposit of employee contributions constitutes an employee benefit plan.

Employees engaged in the retail sale of passenger buses to the ultimate purchasers will come within overtime pay exemption, since such buses come within the definition of "trucks" as used in section 13(b)(10)(A) of the FLSA.

Contract with client who is not eligible for Federal reimbursement, permitting a payroll deduction for the partial reimbursement by the client to that agency. Section 3(m).

Clarification of Fire Protection, Exit Routes, and Hazardous Material Standards. - [1910.38; 1910.157; 1910.38(e); 1910.157(g)(1)]

Employee spends most of his workday operating the grinding mill, and storing the ground shell. When the truck of the contract carrier utilized by the chicken meal processor arrives at establishment, the employee operates automatic loading equipment to load the ground crab shell material. Section 13(b)(1)

The waiter chef brings food order to a table and cooks it on a hibachi grill in front of the customers, while entertaining customers. Waiters take food and drink orders. Tips are split 50/50 between the two.

Status and applicability of Thiram standards in Washington and Oregon. - [1910.1000]

Clinical instructor and the education coordinator, it is our opinion such employees can qualify for exemption under section 13(a)(I) as engaged in teaching and administrative duties within the meaning of the regulations.

Whether an employee benefit plan required by its plan documents to have more than 50 percent of its assets invested in qualifying employer securities, or if the plan’s fiduciary’s duties under section 404 of ERISA require fewer plan assets to be invested in employer securities, the plan will satisfy the requirement of ERISA section 407(d)(6) of ERISA  that an employee stock ownership plan must be designed to invest primarily in qualify employer securities.

Whether the prohibited transaction rules of ERISA allow the full-time international representative of an international union to be compensated for services performed as administrator of multiemployer plans negotiated by the local chapter (and member) of the same international union.

Whether the Department of Labor would (1) reconsider its Advisory Opinion 82-2A, which stated that the Truman Medical Center Retirement Plan (the Plan) was not a governmental plan within the meaning of section 3(32) of ERISA, (2) not implement that opinion until the Pension Benefit Guaranty completes its reconsideration of its determination that the Plan is not a governmental plan, and/or (3) delay the effective date of those decisions.

Method I. Employees who utilize the child care service would have deductions made from their wages to cover the cost of service. Method II. Employees whose salaries would be reduced by the amount of the child care expense, would pay for the child care service and would then receive a reimbursement from the employer. Section 3(m).

Whether the Baytown Mutual Benefit Association (MBA), established to furnish medical services to its members, and which has a clinic with doctors, a laboratory, an x-ray department and a pharmacy, is an employee welfare benefit plan as defined by section 3(1) of title I of ERISA, established or maintained by an employee organization, as defined in section 3(4) of ERISA, and whether section 514 of ERISA preempts an opinion from the office of the Attorney General of the State of Texas.

Whether the Retail Employee’s Local 919 and Contributing Employers’ Food Pension Trust (Local 919 Trust), created by collective bargaining to receive contributions from at least three employers is a multiemployer plan under section 3(37) of ERISA, as amended by the Multiemployer Pension Plan Amendments Act of 1980, and Department of Labor regulation 29 CFR § 2510.3-37.

Whether a program under which Integon Life Insurance Corporation (Integon), a member of a control group of corporations whose parent is Ashland Oil, Inc. (AOI), proposes to offer the opportunity to purchase life insurance to certain of its employees, certain employees of corporations affiliated with AOI, and certain employees of non-affiliated companies in the same control group is an employee benefit plan  as defined by section 4(3) of title I of ERISA.

Ex 1: Employee paid two times one half the regular rate found by dividing the guaranteed salary by the number of hours worked for each hour worked in excess of 40 hours in a workweek. Ex 2: the guaranteed salary would be divided by 40 hours and one half this amount would be paid for each hour worked in excess of 40 hours in a workweek. Section 778.114

The profit-sharing plan payments are made on an employee's behalf as a result of his election to reduce his salary under a cash of deferred arrangement as described in Section 401k. Is plan includable in wages under section 3(m).

Tennessee's fire protection standard. - [1910.156(a)(2)]

Multiple questions regarding overtime computations.

Whether under certain circumstances an individual retirement account (IRA) payroll deduction program instituted by a securities broker (Employer) for the Employer’s own employees will constitute an employee pension plan within the meaning of section 3(2) of title I of ERISA if the Employer waives certain fees that it usually charges members of the public (non-employees) enrolling in similar IRAs offered by the employer.

Whether the Individual Retirement Annuity (IRA) payroll deduction program that Farmers and Traders Life Insurance Company (the Company) offers its home office employees constitutes an employee pension benefit plan within the meaning of section 3(2) of title I of ERISA if the Company pays towards the premium an amount equal to the sales commission that the Company would pay an agent who sold an similar annuity.

Use of pin connected work platforms on your rough terrain cranes. - [1926.556]

Whether the Individual Retirement Account (IRA) payroll deduction program the Colorado National Bank of Denver (CNB) proposes to offer employees of employers not affiliated with CNB is an employee pension benefit plan within the meaning of section 3(2) of title I of ERISA.

Whether the Easco Corporation Health Benefit Plan, with Easco providing for a self-funded arrangement for benefits not in excess of a specified amount and Aetna Life Insurance Company  paying benefits in excess of such amounts under a group insurance policy, is an employee welfare benefit plan covered by title I of the Employee Retirement Income Security Act of 1974 (ERISA).

Employees do tilling, cultivating, and harvesting fruit and vegetables, the farm operates a retail farm market. Agriculture or irrigation section 13(b)(12)

Where the PBGC appointed itself trustee of the  Inpak, Inc. Pension Plan effective March 31, 1980, whether the administrator of the Plan is required to comply with the following reporting and disclosure requirements of ERISA for any year subsequent to the plan year ended March 31, 1980: (1) preparation and filing of an annual return/report (Form 5500 series), including any schedules, financial statements and accounting and/or actuarial opinions required to be appended thereto; (2) preparation and distribution of summary annual reports to participants; and (3)preparation and distribution of summary plan descriptions to participants and filing a copy of the summary plan description with the Secretary of Labor.

Whether Fireside Thrift Co., an industrial loan company, is a "bank or similar financial institution" within the meaning of section 408(b)(4) of the Employee Retirement Income Security Act of 1974 ("ERISA").

Whether the payment of finder fees by the Philadelphia Saving Fund Society (PSFS) to investment brokerage firms which refer an individual to PSFS for the establishment of a PSFS IRA would not be a prohibited transaction under section 4975(c)(1) of the Code (or section 406 of ERISA).

Whether the Detroit/Wayne County Port Authority’s "cafeteria" plan covering only Authority employees, which may, under certain options, include its employees in a larger group in order to obtain favorable group insurance rates, is a governmental plan.

Utilization of a Stop Time Measuring Instrument for Verification of Compliance With 29 CFR 1910.217. - [1910.217]

Whether under section 406 of ERISA (Company) and other members of its controlled group may retain (Bank) as trustee of various employee benefit plans which (Company) or any member of its controlled group maintain, or in the future may maintain, and that (Bank) may be paid reasonable compensation for trustee service performed.  Whether plan assets may be invested in (Bank's) commingled short-term investment fund without engaging in a prohibited transaction under section 406 of ERISA.

Bonuses under the plans will be distributed in terms of "cents per hour" (bonus wages rate) and will be based on actual hours worked. The payment will be adjusted for overtime hours. Section 7(e)

Whether employers adopting SEP arrangements with Foothill Thrift, an industrial loan company, would not be precluded from using the alternative method of compliance prescribed in 29 CFR §2520.104-49 by reason of certain limitations on the withdrawal of funds by participants exercisable by Foothill Thrift. Whether the limitations on withdrawal provisions of Foothill Thrift's IRA investment certificates, which could possibly affect withdrawals of contributions under a SEP arrangement, are deemed to be "provisions that prohibit the withdrawal of funds by participants" within the meaning of such phrase as it is used in §2520.104-49.

Whether the Ford Motor Company’s Salaried Income Security Plan is an employee welfare benefit plan within the meaning of section 3(1) of ERISA and not an employee pension benefit plan within the meaning of section 3(2) of ERISA.

Whether the Chiropractic Health Plan Trust is an employee welfare benefit plan within the meaning of section 3(1) of ERISA.  Whether the state chiropractic associations would be "employers" within the meaning of section 3(5) of ERISA in relation to a program of benefits which are among those identified in section 3(1) of ERISA and which is offered to the members of these chiropractic associations?

Whether a pension plan established and maintained by Blind Industries and Services of Maryland (BISM) only for its employees and a plan maintained both by BISM for its employees and by the Maryland Vending Facilities Program, Division of Vocational Rehabilitation (DVR), a division of the Maryland Department of Education, for former BISM employees now employed by DVR are governmental plans excluded from coverage by title I of ERISA.

Whether the Eastern Small Business Federation Group Trust is an employee welfare benefit plan within the meaning of section 3(1) of ERISA and is covered by title I of ERISA. Whether section 514 of ERISA preempts the provisions of Chapter 676 of the Connecticut General Laws (Conn. Chap. 676) from applying to the Trust.

Whether the proposed wage continuation plans of International Metals & Machines, Inc. and certain of its affiliates constitute a payroll practice within the meaning of 29 C.F.R. §2510.3-1(b)(2) rather than an employee welfare benefit plan described in ERISA section 3(1) and, thus, excluded from ERISA title I coverage.

Medical laboratory is a non-profit corporation solely owned by hospitals in the area. ISection 7(j) does not apply to the employees because they are not deemed to be employed by an "employer engaged in the operation of a hospital.

Requirements that all walking and working surfaces be kept clean, orderly, and in a sanitary condition. - [1910.22]

Wearing of contact lenses while welding. - [1910.133(a)(3)]

Breeding dairy and beef cattles practices performed are within the meaning of Section 3(f). Employees exclusively engaged in such activities during a workweek are exempt from overtime premium pay pursuant to Section 13(b)(12).

Whether the retention by the Vanguard Fiduciary Trust Company of the Vanguard Group to provide certain services to the Trust Company in the Trust Company's capacity as a fiduciary to employee benefits plans is exempt from the prohibitions of section 406 of ERISA and section 4975(c) of the Code by reason of section 408(b)(2) of ERISA and section 4975(d)(2) of the Code.  Whether the retention of Vanguard Group by the Trust Company does not constitute an act of self-dealing in violation of section 406(b)(1) of ERISA.

Flat fee payments for cleaning or reconditioning used cars which are paid without regard to the value of the service performed do not represent "commissions on goods or services" for the purposes of section 7(i). Employees subjected to overtime under section 7(a).

Whether the Sisters of Mercy Short Term Disability Plan, the Sisters of Mercy Dental Plan, and the Sisters of Mercy Health Care Plan  qualify for the limited exemption from certain annual reporting requirements of ERISA provided by 29 CFR §2520.104-44.

Travel time and premium pay received. sections 778.201 and 778.206, section 7(e)(7) that extra compensation provided by a premium rate paid "in pursuance of an applicable employment contract or collective-bargaining agreement for work outside of hours established in good faith by the contract or agreement.

Determining whether recruiters specialized in functional area such as insurance, accouning, finance and data processing meets 13(a)(l) exemption. 

Whether an employer would not be considered to establish or maintain an "employee pension benefit plan" within the meaning of section 3(2) of title I of ERISA by virtue of having taken certain actions related to Equitable's Group IRA solely to facilitate their employees’ participation in Equitable's Group IRA and all the criteria contained in regulation 29 C.F.R. §2510.3-2(d) and Opinion 81-80A are met.

The application of the offset rule in the suspension of benefits regulation issued by the Department of Labor under section 203(a)(3)(B) of ERISA to situations involving the  Plasterers and Cement Masons Local 109 Pension Fund.

Whether the provision of investment management services by Krehbiel & Hubbard, Inc., the provision of trustee services by Krehbiel and Hubbard and the provision of custodial and temporary investment services by the Custodian would be exempt from the prohibitions of section 406(a) of ERISA under section 408(b)(2). Whether the initial appointment of Krehbiel & Hubbard, Inc. as investment manager of the Master Trust and Hubbard and Krehbiel as trustees of the Master Trust by independent plan fiduciaries pursuant to the Joinder Agreement and the adoption of the Master Trust would not cause Hubbard, Krehbiel, and Krehbiel & Hubbard, Inc. to violate sections 406(b)(l) or 406(b)(2).  Whether the provision of services in itself by Krehbiel & Hubbard, Inc. and Krehbiel and Hubbard under the collective investment program will result in acts described in section 406(b)(1) of ERISA. Whether the temporary investment of Master Trust assets in the Custodian's Collective Investment Plan for Daily Interest at the direction of Krehbiel & Hubbard, Inc. is exempted under section 408(b)(8). Whether the temporary investment of Master Trust assets in deposits of the Custodian at the direction of Krehbiel & Hubbard, Inc. is exempted under section 408(b)(4).

Clarification of the classification of the aquaculture industries for OSHA enforcement purposes. - [1928]

Whether the Realtors Group Insurance Trust (REGIT) is an "employee welfare benefit plan" which is "maintained by an employer" within the meaning of sections 3(1) and 3(5) of ERISA.

Application of ERISA relating to employee benefit plan investments in futures contracts.

The seaman services are not rendered primarily as an aid in the operation of the vessel as a means of transportation.  The crew of the vessel in question is not exempt under section 13(a)(12)

Enforcement criteria for lead monitoring requirements of recirculated air. - [1910.1025(e)(4)(ii)]