Background:
Historically Mortgage Loan Officers, Mortgage Processors, Closers, and Sales
Assistants positions were classified as exempt under Part 541.200
Administrative exemption. These positions were reclassified as non-exempt by
the U.S. Department of Labor, DOL.
Under the current regulations as interpreted by
the DOL, all Mortgage Loan Officer job classifications are non-exempt and are
required to track hours worked and report hours on a weekly basis.
Recent Developments:
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 them to track MLO
hours worked including overtime. There
are many lawyers that dedicate their practice to this area of law and seek out MLOs
who are not required to track hours worked. In addition to attorney fees paid by the employer, MLO's can be awarded back wages based on stated hours. Employers rarely prevail in this type of case.
This court decision reinstates a prior
Opinion Letter issued by the DOL in 2006 that had concluded loan officers in
the mortgage banking industry generally may qualify as exempt
from overtime under the administrative exemption of the federal Fair Labor
Standards Act. MBA had challenged the
contrary 2010 Interpretation because it had been issued by the DOL without
first conducting the “notice and comment” rule making process required under the
Administrative Procedure Act.
The Appeals Court agreed with
the MBA, but took no position on the merits of whether mortgage loan
officers may in fact qualify under the administrative exemption to be exempt
from the payment of overtime wages. Thus,
the DOL may subsequently readopt the 2010 Interpretation after conducting the
proper rule making procedures.
In
the interim, mortgage industry employers may choose to rely on the 2006 Opinion
Letter to potentially escape overtime liability regarding their loan officers at
their own peril.
Southeast Mortgage’s General Counsel opinion on
the recent court decision:
After review of
the 2006 DOL Administrator's Interpretation and the 2010 Administrator's
Interpretation, and the summary of the Court of Appeals ruling, SEM believes
there is a very high likelihood that the DOL will reissue the
Administrator's Interpretation and follow the proper rule making procedures
and then formally adopt the 2010 Interpretation as the prevailing rule on the
treatment of MLO's as non-exempt.
The rationale of the 2010 Interpretation is consistent with the views of a
Democratic Party appointee, and the rule making process can be completed
relatively quickly. SEM does not see a high probability that a different
interpretation will be adopted, and there would be an unacceptable risk to revisit
treating MLO's as exempt employees.
The rationale used in the 2010
Interpretation has valid reasoning and cites relevant court cases that support
the interpretation and the Court of Appeals does not criticize the rationale
of the 2010 Interpretation, just the procedure followed in implementing a new
rule that overturns a prior, contrary interpretation.
DOL Determination: Mortgage Loan Officer Job Classification
Historically
Mortgage Loan Officers, Mortgage Processors, Closers, Specialists and Sales
Assistants positions were classified as exempt under Part 541.200
Administrative exemption. These positions were reclassified as non-exempt.
Mortgage Loan
Officer, MLO, sales positions have historically been classified as exempt under the
Outside Sales Exemption US Wage & Hour Part 541.500, 541.501 and 541.502.
The outside sales
exemption requires that the majority of the employee’s time be spent developing
business and meeting face to face with clients and referral partners outside
and away from the employer’s place of business. A place of business is an
office or an MLOs home office. Due to the convenience of technology today, the
majority of the business conducted by MLOs is done via internet, email, phone,
and fax. In the past, this activity has been more incidental to an outside sale
(face to face appointment with a client) and thus did not present a problem
relative to meeting the outside sales exemption under Part 541. In the
present, 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.
Although the U.S. Department of Labor (DOL) has not issued an official opinion letter
specifically regarding the MLO position and the “outside sales exemption,” it
did previously issue an opinion in 2006 which concluded that typical loan officers were exempt from Fair Labor Standards Act
(FLSA) requirements for overtime payments under the “administrative exemption”.
More recently in March of 2010, the DOL reversed the 2006 opinion and
stated that the typical loan officer position no longer met the “administrative
exemption.”
As of January 12, 2011,
The Mortgage Bankers Association (MBA) filed suit against
the U.S. Department of Labor (DOL) in the United States District Court for the
District of Columbia under the Administrative Procedure Act (APA). The suit seeks to set
aside DOL’s Wage and Hour Division Administrator’s Interpretation No. 2010-1
(March 24, 2010) that reversed and withdrew a 2006 opinion letter from DOL to
MBA.
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, President and CEO, Southeast Mortgage
www.southeastmortgage.com
770-279-0222
