The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-6. 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, an employer requested an opinion as to whether its pilots are exempt under the learned professional exemption. The employer has eight full-time pilots to fly its Gulf Stream and Citation-Excel jet aircraft and its medium Sikorski S76A helicopter. The pilots transport the Company’s executives, customers, and guests on an as needed basis. “The Chief Pilot and all of the Captains (pilots ## 1 – 7) hold FAA Airline Transport Pilot Certifications; all of the pilots (including the First Officer, pilot #8) hold commercial pilot licenses with instrument and multi-engine ratings and each one meets or exceeds the FAA’s requirements to qualify as a pilot-in-command.”

The DOL reaffirmed that since aviation isn’t “a field of science or learning” and that pilots do not acquire their knowledge through a “prolonged course of specialized intellectual instruction”, they are not eligible for the learned professional exemption.

For pilots and co-pilots of airplanes and rotorcraft with an FAA Airline Transport Certificate or Commercial Certificate who are paid a salary of at least $455 per week, the DOL takes a “position of non-enforcement”. This position also requires that the pilots or co-pilots be engaged as follows:

1. Flying of aircraft as business or company pilots;
2. Aerial mineral exploration;
3. Aerial mapping and photography;
4. Aerial forest fire protection;
5. Aerial meteorological research;
6. Test flights of aircraft in connection with engineering, production, or sale;
7. Aerial logging, fire suppression, forest fertilizing, forest seeding, forest spraying, and related activities involving precision flying over mountainous forest areas;
8. Flying activities in connection with transmission tower construction, transmission line construction, transportation of completed structures with precision setting of footings, concrete pouring; or
9. Aerial construction of sections of oil drilling rigs and pipe-lines, and ski-lift and fire lookout constructions.

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.