Wednesday, January 22, 2014

Over Time must be paid to Mortgage Originators - DOL - Time Tracking Required

Historically Mortgage Loan Officers (MLO), Mortgage Processors, Closers, and Sales Assistants positions were classified as exempt (no overtime) under Part 541.200 Administrative exemption. These positions were reclassified as non-exempt (time tracking and payment of overtime required) by the U.S. Department of Labor, DOL. 

Under the current regulations as interpreted by the DOL, all MLO job classifications are non-exempt and their employer is required to track hours worked on a weekly basis and pay overtime. 

With a two year look back on hours worked and Plaintiff attorney fees paid by Employer, the liability can be staggering.  All Employers of MLOs are required and the burden of proof is on the Employer to track MLO hours worked including overtime.  The Plaintiff's Attorney, employee's attorney, can file in Federal Court as a class which includes all current and ex-employees in the settlement unless they opt out.  Employers rarely prevail these cases. 

DOL Determination: Mortgage Loan Officer Job Classification is Non-Exempt
Sales activity conducted via internet, email, phone, and fax is no longer incidental to, but is the primary way business is conducted. As a result, all MLO positions are non-exempt.  To satisfy the exempt test, MLOs have to meet with clients at their client’s home at least 80% of their work time.  MLOs will still be able to work both in and out of offices on an at will basis, but will be required to record hours worked on a weekly basis.

Employees who fall under non-exempt classifications are entitled to a guaranteed minimum wage of $7.25 per hour, for every hour worked between 1 and 40 in a work week and are entitled to overtime pay at a rate not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.  Regular rates of pay are calculated based upon weekly earnings including commissions.  All compensation must be paid on a W2 basis.
Under the current regulations as interpreted by the DOL, all Mortgage Loan Officer job classifications are non-exempt and are required to use time tracking systems to report hours worked on a weekly basis.
Cal Haupt, CEO, Southeast Mortgage of Georgia, Inc.

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