The U.S. Department of Labor (“DOL”) Wage and Hour Division issued seven opinion letters in the past week pertaining to the Fair Labor Standards Act (“FLSA”). The letters address the amusement or recreational establishment exemption, tip pools, overtime for tipped employees, the retail or service establishment exemption, the creative professionals exemption, and the independent contractor analysis.

[*Note:  On January 26, 2021, the DOL withdrew FLSA2021-4, FLSA2021-8, and FLSA2021-9, stating that they were “issued prematurely because they are based on rules that have not gone into effect” (i.e., the independent contractor rule and the tip pool rule).]

• FLSA2021-3 addresses whether certain entities qualify for an exemption as an (1) “establishment” that is (2) “an amusement or recreational establishment, organized camp, or religious or non-profit education conference center”; and (3) satisfies either the “Calendar Test” or the “Receipts Test.” The letter concludes that an accrual method of accounting does not satisfy the “Receipts Test,” and charitable gifts and donations are not “receipts.”
• FLSA2021-4 concludes that although a restaurant’s hosts and hostesses do not appear to be tipped employees who may participate in a traditional tip pool, they will be able to participate in a nontraditional tip pool under the new rule, effective March 1, 2021, if (1) the pool does not include any managers or supervisors and (2) the employer does not take a tip credit and pays the full minimum wage to both the tipped and non-tipped employees in the pool.
• FLSA2021-5 discusses the proper calculation of overtime pay when a tipped employee works as a server and bartender, and receives tips and amounts charged as automatic gratuities or service charges.
• FLSA2021-6 discusses the applicability of FLSA’s “retail or service establishment” exemption to staffing firms that recruit, hire, and place employees on assignments with clients. The letter concludes that it requires a case-by-case analysis of whether (1) the employee works at a retail or service establishment; (2) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage; and (3) the employee’s earnings in a representative period are composed of more than 50% commissions.
• FLSA2021-7 concludes that local small-town and community news source journalists can be exempt creative professionals under the FLSA if they satisfy the primary duties test. To do so, their primary duty must be to perform work that requires “invention, imagination, originality, or talent” as opposed to only collecting, organizing, and recording information that is routine or already public.
• FLSA2021-8 concludes that distributors of a manufacturer’s food products are independent contractors under the FLSA because (1) an analysis of the two “core factors” of control and opportunity for profit or loss point to independent contractor status, and (2) the three “other factors” (skill required for the work permanency of the relationship, and integration of the work into a unity of production) do not indicate a reason to disagree with that conclusion.
• FLSA2021-9 concludes that (1) certain owner-operators are properly classified as independent contractors based on an analysis of the two “core factors” and three “other factors”; and (2) requiring tractor-trailer truck drivers to implement safety measures required by law does not constitute control for purposes of their status as independent contractors.