The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-5. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).

In this Opinion Letter, the DOL confirmed that lifeguards employed for less than seven months of the year are exempt from the minimum wage and overtime requirements of the FLSA. The lifeguards in question were employed by a town “to protect swimmers at the local beach.”

Since employees of an “establishment that is an amusement or recreation establishment, organized camp, or religious or non-profit conference center” that is not open more than seven months in a calendar year are exempt from the FLSA, a key factor was the definition of “establishment”. The Opinion Letter also confirmed that an amusement or recreational establishment supported by tax revenues cannot qualify under a second test involving the seasonality of the revenue collected.

The Opinion Letter clarified that “the term ‘establishment’ refers to a distinct physical place of business rather than to an entire business or enterprise, which may include several separate places of business.” Also, the fact that some employees may work more than seven months in a year does not deny the exemption as long as the beach is not open for protected swimming for more than seven months.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.