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The Mortgage Bankers Association has filed a lawsuit in court against the U.S. Department of Labor ("DOL") for inconsistent opinions as to whether mortgage credit insurers are entitled to receive extra time. In July 2013, we report that the D.C. Circuit Court of Appeals nullified the 2010 declaration by our credit officer that credit representatives are generally not entitled to time off for administration work.
Proclamation of the DOL 2010 has cancelled its statement from 2006 and has come to the opposite result. In July 2014, we subsequently report that the U.S. Supreme Court has allowed a review. Sure. Now the Supreme Court has decided. The Supreme Court in Perez v. Mortgage Bankers Association, Case No. 13-1041, decided on March 9, 2015, that the DOL was authorized to release its 2010 interpretations regardless of the flip-flop, and that the D.C. Circuit Court was wrong to invalidate them.
It is particularly important for businesses employing credit analysts and has a wider effect on the continued credibility of the Agency's opinions as a guide to commercial choices. The Perez judgment will not have a major immediate effect on those who already qualify credit clerks as not exempted and are therefore considered for long hours.
Concerning those who consider credit handlers to be exempted, the Commission's ruling does not necessarily exclude the possible applicability of an indemnity, but limits the scope for an applicability of an indemnity. Perez said the DOL was allowed to retract its 2006 interpretations and in 2010 issued an opposing one, according to which credit clerks with typically tasks were not eligible for leave from working administratively late hours.
Therefore, the employer may no longer use the 2006 report as a base for the classification of its credit officer as exempted. Perez, on the other however, does not exclude the option of introducing an exception in other situations or for other reasons. DOL's current 2010 version does not deal with the question of whether credit clerks with non-standard tasks could be eligible for administration leave, or whether credit clerks could be eligible for another leave such as external turnover leave.
We have already mentioned that the determination of whether a particular leave is applicable to extra hours is a very pertinent investigation. Furthermore, for credit clerks working in states such as California, the state liberation test must also be completed. Pérez is also remarkable because it believes that state authorities are allowed to change their minds that interpret laws and rules under their jurisdictions, even to the point where they fully reverse their previous interpretation, just with the dash of a stylus.
In reviewing (or even reversing) an interpretative management act, these bodies are not required to respect the notification and commenting functions of the Act on Management Procedure or other guarantees to maintain the integrity of a previously published interpretative management act. Also, be aware that three judges shared unanimous views that expressed concerns that other Supreme Court precedents require the tribunals to show a high level of respect for the interpretive work of a state authority.
The three judges proposed that if interpretation of the German Supreme Court is so readily tampered with, perhaps the Supreme Court should consider how much respect the court should need to give it. However, the Supreme Court's example of respect will remain in place for the moment. Thus, the authorities are allowed to change or even reverse their previous interpretation one-sidedly, and the new interpretation can continue to be respected by the court.
What does this choice mean in practice for enterprises employing credit analysts? Those who still categorize these staff members as exempted, as mentioned above, should review this categorization with a lawyer to see if their credit clerks are covered by any other relevant waiver, or if their responsibilities are untypical.
Both state and federally-regulated leave of absence legislation must be reviewed by the employer. Credit clerks working in California, for example, are governed by California's stricter exceptions. The employer should also review its remuneration practice for non-exempt credit analysts and ask, inter alia, the following questions: Does such employee receive extra hours, meals and breaks when necessary under state legislation, such as California?
Does an employer calculate the normal wage rates for these workers properly for the purpose of working extra hours? Does the employer take the appropriate remuneration into account in the standard wage scale when he calculates remuneration for working time? When credit clerks are remunerated on a fee based fee base, is the fee remunerated properly? For example, in California, fee schedules must be prepared in written form.
Bottom line, the employer should take this occasion to review their classifications and remuneration practice in relation to their credit officer.