WASHINGTON, DC – The U.S. Department of Labor announced today that it has issued a new opinion letter that addresses compliance issues related to the Fair Labor Standards Act (FLSA). An opinion letter is an official, written opinion by the Department's Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The opinion letter issued today is:

• FLSA2019-6, addressing whether a service provider for a virtual marketplace company is an employee of the company or an independent contractor under the FLSA.

This letter responds to a request on behalf of a particular virtual marketplace company. It concludes that the workers who provide services to consumers through this specific company's virtual platform are independent contractors, not employees of the company. To make this determination, WHD applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent:

• The nature and degree of the potential employer's control;
• The permanency of the worker's relationship with the potential employer;
• The amount of the worker's investment in facilities, equipment, or helpers;
• The amount of skill, initiative, judgment, or foresight required for the worker's services;
• The worker's opportunities for profit or loss; and
• The extent of integration of the worker's services into the potential employer's business.

"An important role of the U.S. Department of Labor is to ensure that employers who want to do the right thing have clear compliance assistance," said Keith Sonderling, Acting Administrator of the Department's Wage and Hour Division. "Today, the U.S. Department of Labor offers further insight into the nexus of current labor law and innovations in the job market."

The Department offers a search function allowing users to search existing opinion letters by keyword, year, topic, and a variety of other filters; and encourages the public to submit requests for opinion letters to WHD to obtain an opinion or to determine whether existing guidance already addresses their questions. The Division exercises its discretion in determining whether and how it will respond to each request.

LONGWOOD, FL – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Competitive Edge Group Inc. – operating as Competitive Edge Landscaping and based in Longwood, Florida – will pay $44,280 in back wages to 75 employees for violating the overtime and recordkeeping requirements of the Fair Labor Standards Act (FLSA).

WHD investigators found Competitive Edge Group Inc. violated the FLSA's overtime requirements when the employer paid employees flat rates per day without regard to the number of hours they actually worked. This practice resulted in overtime violations when employees worked more than 40 hours in a workweek yet were not paid overtime. Investigators found additional overtime violations when the employer began paying on an hourly basis, but still failed to pay overtime when employees worked beyond 40 hours per week. When the employer did begin to pay overtime, the employer erroneously excluded bonus payments from workers' regular rates of pay, resulting in paying overtime rates lower than those required by law. Investigators also found the employer failed to maintain required payroll records, an FLSA recordkeeping violation.

"Most workers - including those paid by the day, by the job, by the unit, or on a weekly salary - are still entitled to overtime when they work more than 40 hours in a workweek," said Wage and Hour Division District Director Daniel White, in Jacksonville. "We encourage all employers to use the tools the U.S. Department of Labor offers to learn about their responsibilities and to avoid violations."

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at https://www.dol.gov/whd.

DURHAM, NC – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), five Subway fast food franchise locations in North Carolina – owned and operated by Mahmoud Alkurdasi and Hala M. Saleh – have paid $13,970 in back wages to 150 employees for violating the minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act (FLSA).

WHD investigators found the employer failed to pay employees for time they spent working before and after their scheduled shifts, performing tasks such as counting the cash in the register and other opening or closing procedures. Instead, the employer paid only for scheduled hours. This practice of failing to pay workers for time they had worked resulted in minimum wage violations when workers' wages dipped below the federal minimum wage of $7.25 per hour due to this unpaid time. The Subway locations - two in Fayetteville, and one each in Raleigh, Lumberton, and Hope Mills - also made deductions from workers' pay to cover register shortages and to pay for deficiencies that needed to be corrected when workers remade sandwiches or salads for customers. These deductions resulted in additional minimum wage violations.

The employer also failed to combine hours when employees worked at multiple locations for them during the workweek. This practice resulted in overtime violations when the employees' total hours between the restaurants totaled more than 40, but the employer paid the workers with separate checks from each location, at straight time. WHD also found Alkurdasi and Saleh violated federal recordkeeping requirements by failing to keep accurate records of the number of hours employees worked, and by failing to maintain accurate records of employees' addresses, gender information, or birth dates for employees under the age of 18.

"Employers must pay employees for all of the time that they work, whether or not that time is on the official schedule. The employer bears the responsibility to record all of the time that employees actually work," said Wage and Hour District Director Richard Blaylock, in Raleigh, North Carolina. "The U.S. Department of Labor works hard to ensure that employees receive the wages they have rightfully earned. We encourage all employers to make use of the resources we provide to help them understand their responsibilities and operate in compliance with the law. Violations like those in this case can be avoided."

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at https://www.dol.gov/whd.

MANCHESTER, NH – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Nordic Construction Services LLC – based in Berlin, New Hampshire – has paid $38,678 in back wages and an equal amount in liquidated damages to 45 employees to resolve overtime and record keeping violations of the Fair Labor Standards Act (FLSA).

WHD investigators found that the employer paid employees straight time rates instead of overtime when they worked more than 40 hours in a workweek, and failed to pay employees for travel time that the employer should have counted as work time. Nordic Construction also failed to record travel hours, resulting in a recordkeeping violation.

"Ensuring that employers properly pay employees for all the hours that they work not only provides workers with the wages they have earned, it also levels the playing field for employers who operate in compliance and must compete directly with those who do not," said Wage and Hour Division District Director Daniel Cronin in the Northern New England District Office. "We encourage employers to contact us with any questions they may have, and to use the wide variety of tools we offer to help them understand their obligations and to comply with the law. Violations like these can be avoided."

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at http://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.

LUBBOCK, TX – In a settlement with the U.S. Department of Labor, Allegiance Behavioral Health Center of Plainview doing business as Inspirations, a subsidiary of Allegiance Health Management Inc. based in Shreveport, Louisiana, will pay $22,000 in back wages and compensatory and liquidated damages to a former employee for violating the anti-retaliation provisions of the Fair Labor Standards Act (FLSA).

The Department filed a lawsuit against the employer in federal court after an investigation by the Department's Wage and Hour Division (WHD) found that the family counseling company violated the FLSA's nursing mothers provision when it denied the employee adequate time and space to express milk. The employee had no choice but to express milk in a parking lot accessible to both her co-workers and the public. Faced with continuing that practice or leaving her employment, the employee quit her job, which the Department deemed a constructive discharge under the FLSA's anti-retaliation provisions.

"Employers and employees should understand that forcing a nursing mother to express milk in a restroom or in public is against the law," said Wage and Hour's Southwest Regional Administrator, Betty Campbell. "The law requires employers to provide women who are nursing with privacy during their break time. The Wage and Hour Division provides compliance assistance to help employers understand their responsibilities to their employees, including the right of nursing mothers to request the time and space they need to express milk without interruption and without fear of retaliation."

Under the FLSA, employers are required to provide a place - other than a bathroom - shielded from view and free from intrusion from coworkers and the public, where an employee can express breast milk. Employers are also required to provide reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child's birth each time the employee has need to express milk. Learn more about the FLSA's nursing mothers' provisions.

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.

Civil Action No.:  5:18-cv-00100

BOISE, ID – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Any Weather Exteriors LLC – a construction contractor based in Star, Idaho – will pay $51,328 in back wages and liquidated damages to 25 employees for violating the overtime requirements of the Fair Labor Standards Act (FLSA).

WHD investigators found that Any Weather Exteriors LLC paid employees straight-time rates for all the hours that they worked and failed to pay them overtime when they worked more than 40 hours in a workweek. The employer also misclassified two employees as independent contractors, resulting in additional overtime violations when the employer failed to record the number of hours that they worked, and subsequently failed to pay them overtime. Any Weather Exteriors also violated FLSA recordkeeping requirements when it failed to maintain time and payroll records, and display required FLSA posters.

"Employers must comply with federal laws and ensure employees receive the wages they have rightfully earned," said Wage and Hour Division District Director Thomas Silva, in Portland, Oregon. "Simply because a practice may appear to be common in an industry doesn't mean that it's legal. The U.S. Department of Labor provides many tools to help employers understand their responsibilities to their employees and comply with the law. We encourage employers and employees alike to contact us for assistance. Violations like those found in this case can be avoided."

Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/whd including a search tool for workers who may be owed back wages collected by WHD.

HESSMER, LA – To resolve a lawsuit filed with the Department of Labor's Office of Administrative Law Judges (OALJ), Earl Roy Farm of Louisiana LLC – based in Hessmer, Louisiana – has signed consent findings and will pay $71,611 in back wages to 76 employees, and $33,388 in civil money penalties. The U.S. Department of Labor Wage and Hour Division (WHD) investigated the company and found it had violated the labor provisions of the H-2A temporary agricultural visa program.

Specifically, the WHD found that Earl Roy Farm of Louisiana LLC:

• Gave H-2A workers preferential treatment by paying American workers lower wages than those paid to H-2A workers;
• Failed to reimburse H-2A workers for the full cost of their transportation from their home towns to the farm and back again, as the law requires;
• Failed to ensure that workers were offered at least three-fourths of the work hours disclosed in its contracts;
• Failed to provide local workers engaged in similar work as the H-2A workers with written work contracts; and
• Unlawfully laid off American workers.

"Any employer seeking H-2A workers must be ready and willing to abide by all the program's requirements, and must not attempt to shift any of the employer's costs onto the workers," said Wage and Hour Division Southwest Regional Administrator Betty Campbell. "The U.S. Department of Labor will continue to safeguard American jobs, level the playing field for law-abiding employers, and ensure that workers are paid the wages that they legally earned. We encourage employers to contact the Wage and Hour Division by phone, online, or to attend any of our outreach events for assistance and to learn more about their responsibilities."

The H-2A temporary agricultural program establishes a means for agricultural employers, who anticipate a shortage of domestic workers, to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

The program requires an employer to attest to the U.S. Department of Labor that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage for the occupation and geographic area, applicable federal minimum wage, state minimum wage, or local minimum wage. This wage must be paid to the H-2A workers and certain similarly-employed U.S. workers during the entire period of the approved labor certification. The program also establishes recruitment and displacement standards to protect similarly employed American workers.

The Department offers numerous resources to ensure employers have the tools they need to understand their responsibilities and to comply with federal law, such as online videos, confidential calls, or in-person visits to local WHD offices.

Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/whd including a search tool for workers who may be owed back wages collected by WHD.

SAIPAN, CNMI – The U.S. Department of Labor has secured a $3,360,000 consent judgment against the developer of the Imperial Pacific Resort Hotel and Casino in Garapan, Saipan, for minimum wage, overtime, and recordkeeping violations of the Fair Labor Standards Act (FLSA) by contractors working on the construction project.

Entered by the U.S. District Court for the Northern Mariana Islands, the judgment orders Hong Kong-based Imperial Pacific International Holdings, and its Saipan subsidiary Imperial Pacific International (CNMI), to pay $3,160,000 in back wages and liquidated damages to approximately 1,100 employees. The developer must also pay $200,000 in civil money penalties.

The settlement follows an investigation by the Department's Wage and Hour Division that found wage violations occurred when foreign-based construction subcontractors failed to pay their workforce required overtime premium rates for hours worked beyond 40 in a workweek. Investigators also found some of the subcontractors' day rates placed employees' earnings below federal minimum wage.

"This judgment demonstrates the U.S. Department of Labor's strong commitment to ensuring employees receive the wages they have earned," said Wage and Hour Division District Director Terence Trotter in Honolulu, Hawaii. "We will continue to enforce the law and level the playing field, while simultaneously encourage employers and employees to call us for assistance, and use the wide variety of tools we provide. Violations like those found in this investigation can be avoided."

The Department's Office of the Solicitor litigated this case.

"In addition to providing $3,360,000 in unpaid wages, liquidated damages, and penalties, this judgment orders the defendants to adhere to an independent monitoring mechanism, and to take additional steps to safeguard the wages and working conditions of employees," said Regional Solicitor Janet Herold in San Francisco. "Regardless of where work is performed in the U.S. or its territories, the U.S. Department of Labor will continue to fully and fairly enforce the law and provide a level playing field for employers."

To date, the Department has found approximately $17.3 million for more than 2,500 employees working on the Saipan hotel and casino project.

Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/whd including a search tool for workers who may be owed back wages collected by WHD.

BRENTWOOD, CA – J. Carmen Mora – a Northern California farm labor contractor – has paid $143,078 in back wages to 199 employees after a U.S. Department of Labor Wage and Hour Division (WHD) investigation found multiple violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Additionally, WHD assessed the employer $23,048 in civil penalties.

WHD investigators found Mora - doing business as J.C. Mora in Brentwood, California - violated MSPA requirements by illegally deducting up to 12 percent in federal and state tax withholdings from employees' earnings and then failing to remit the withholdings to the IRS and to state tax officials.

Investigators found the farm labor contractor also failed to disclose employment conditions, provide wage statements, display MSPA posters, and keep employment records, as required.

"Employers are responsible for paying their employees all the wages they have legally earned," said Wage and Hour Division District Director Susana Blanco, in San Jose. "We urge employers to call us for assistance, and to use the tools we provide to help them comply with the law. We offer numerous resources for agricultural employers and engage in a robust outreach program to provide the information employers need."

MSPA protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures, and recordkeeping. For general information on MSPA, please see the Employment Law Guide or the Wage and Hour Division's MSPA fact sheet.

To operate legally as farm labor contractors, individuals and companies must register with the U.S. Department of Labor. Farm labor contractors that intend to house, transport, or drive a migrant or seasonal agricultural worker must meet special requirements. Application materials and instructions are available online.

Employees and employers with questions about MSPA or any of the federal laws administered by the Division should call the agency's toll-free helpline at 866-4US-WAGE (487-9243). All calls are confidential. More information also is available online at http://www.dol.gov/whd/.

FRESNO, CA – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), M&L Plumbing Co. Inc. – a plumbing company based in Fresno, California – will pay $113,351 in back wages due to 39 employees for violating overtime requirements of the Fair Labor Standards Act's (FLSA).

WHD investigators determined that M&L Plumbing Co. Inc. failed to record or pay employees for time they spent loading equipment and materials at the company's location before traveling to the first worksite of the day. This unpaid time resulted in overtime violations when employees worked more than 40 hours in a workweek, but were not paid overtime. The practice also led to FLSA recordkeeping violations when the employer failed to accurately record the total number of hours actually worked.

"Employers must pay their employees for all of the hours that they work, including any work that occurs before or after their scheduled shifts," said Wage and Hour Division Assistant District Director Nora Pedraza, in Fresno. "Violations like those found in this investigation can be avoided. The U.S. Department of Labor provides many tools to help employers comply with the law, and we encourage employers and employees alike to contact us for assistance."

Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/whd including a search tool for workers who may be owed back wages collected by WHD.