As we discussed in our last two posts, overtime law is not only complex, it is also largely in the hands of the rule-making arm of the United States Department of Labor. Another point worth making is that the DOL does not hesitate to go down into the weeds when dealing with overtime. Of course it will define in some details the type of duties that must be performed for an employee to fall under the various “exemptions” from the overtime requirements. But it will also interpret its own definitions and opine at the job-title level about who should or should not be exempt.
What is more, it may change its mind. Last year, the Supreme Court allowed it to switch position for the fourth time in ten years on whether mortgage loan officers had to be paid overtime.
The DOL’s luck ran out this month in a case involving service managers. Under the Fair Labor Standards Act, those who sell or service cars are exempt. That left a statutory gap for service advisors who neither sell the vehicle themselves, nor personally service them as mechanics would, but sell services to the owners. For decades, the DOL thought they should be exempt too. Then it changed its mind without warning or hardly any explanation. The Supreme Court held this new position was due no deference at all.
The reasons behind the different results are somewhat technical such as the kind of regulation and regulatory process involved. These kinds of details inform decisions on whether or not to challenge a given regulation. Suffice to say, a knowledgeable attorney is invaluable when it becomes necessary to make those kinds of determinations.