The U.S. Department of Labor’s Wage and Hour Division (WHD) issued two new opinion letters on January 8, 2021, bringing the number of “lame duck” wage and hour opinion letters—issued since Election Day 2020—to six.

In FLSA2021-1, WHD determined that account managers at a life sciences manufacturer qualify for the FLSA’s administrative exemption.  The account managers learn about the needs of potential clients, researching what company products would meet those needs, and communicating about how the company’s products could best fulfill those needs.  The employees act with autonomy, are not closely supervised, and are expected to independently develop account plans and strategies and make independent decisions in answering client questions.  They determine how best to engage with potential clients and to create product solutions, including based on the analysis of information gleaned from the sales process.  On these facts, WHD concluded that the account managers met the duties requirements for the administrative exemption.

In FLSA2021-2, WHD concluded that a private religious preschool can pay its teachers on a salary basis that would otherwise not conform with the FLSA, provided the teachers qualify for the ministerial exception.  The judicially-created exception (there is no mention of it in the FLSA)–based on the First Amendment’s separation of church and state–exempts from FLSA coverage employees of religious institutions whose primary duties are ministerial in nature.  There is no rigid formula for determining who qualifies for the exception, but an employee need not be ordained or have a particular job title to qualify.  To the contrary, employees qualify based on their role in conveying the organization’s message and carrying out its religious mission, a determination that must be made on a case-by-case basis.  WHD notes that religious school teachers can qualify for the exception, and assuming that they do, the school may compensate them on a salary basis that would not otherwise comport with the FLSA.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.