FLSA2009-6 — Pilots and section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2009-6

January 14, 2009

Dear Name*:

This is in response to your request for an opinion regarding the status of your client’s
eight full-time pilots under the Fair Labor Standards Act (FLSA). You ask whether the
pilots are exempt under the learned professional exemption set out in
29 C.F.R. §
541.301.
∗

Section 13(a)(1) of the FLSA provides a complete exemption from the minimum wage
and overtime pay requirements for any employee employed in a bona fide executive,
administrative, or professional capacity, as those terms are defined in 29 C.F.R. Part 541.
An employee may qualify for exemption if all of the pertinent regulatory tests are met
relating to job duties, salary level, and compensation on a salary basis as discussed in the
regulations.

Your client employs eight full-time pilots to service and fly its two jet aircrafts (a Gulf
Stream and a Citation-Excel) and one helicopter (medium Sikorski S76A). The eight
pilots are responsible for transporting the Company’s executives, customers and guests as
needed, for sales support and to board meetings and operation facilities. 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.

In addition, the Chief Pilot serves as the immediate supervisor of the other pilots and the
flight attendants and serves on the department management team as the representative for
the pilots and flight attendants. As a manager of the flight crews, the Chief Pilot also
serves as the team leader, ensures that any issues with direct reports are solved in a
timely and amicable way, and manages the crew members’ flight scheduling, training,
vacations, and unexpected personnel issues, e.g., sickness and crew rest/duty day
concerns. The Chief Pilot (who also possesses a flight instructor rating) is also
responsible for new pilot flight instruction. The base compensation for both the Chief
Pilot and the Standards Captain is salaried in excess of $100,000 per year (along with a
15 percent bonus). The five Captains Pilots receive base compensation of salaries in the
mid- $80,000 to $90,000’s per year, with a 15 percent bonus. The First Officer Pilot,
who also is fully qualified under FAA standards to serve as a pilot-in-command for the
client’s jet aircrafts, but will not yet be assigned as pilot-in-command due to the

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

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Company’s more stringent training and experience requirements, receives base
compensation in the $70,000’s with a 10 percent bonus.

Although you have not specifically referenced the executive exemption, that exemption
may be relevant to your inquiry. The executive exemption is defined as any employee:

(1) Compensated on a salary basis at a rate of not less than $455 per week;

(2) Whose primary duty is management of the enterprise or of a customarily
recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of two or more other
employees; and

(4) Who has the authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees are given particular weight.

29 C.F.R. § 541.100(a)(1) – (4).

It is not apparent from your description whether the Chief Pilot’s primary duty qualifies
as “management . . . of a customarily recognized department or subdivision” of the
employer’s enterprise or department. “Primary duty” is defined in
29 C.F.R. § 541.700
as “the principal, main, major or most important duty that the employee performs.” The
amount of time spent performing exempt work can be a useful guide in determining the
primary duty of an employee, but time alone is not the sole test. An employee who
spends less than 50 percent of the time performing exempt managerial duties may still
meet the primary duty requirement of the executive exemption if other factors support
that conclusion, as discussed in 29 C.F.R. § 541.700(b):

Factors to consider when determining the primary duty of an employee
include, but are not limited to, the relative importance of the exempt duties
as compared with other types of duties; the amount of time spent
performing exempt work; the employee’s relative freedom from direct
supervision; and the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt work performed
by the employee.

29 C.F.R. § 541.700(a).

Whether the flight crew constitutes “a customarily recognized department or subdivision”
within the employer’s management operations is a question of fact. If the Chief Pilot is,
in fact, actually in charge of managing a recognized unit with a permanent status and a
continuing function in the employer’s organization as discussed in
29 C.F.R. § 541.103
and otherwise meets the primary duty requirement of “management” (see 29 C.F.R. §
541.102), the Chief Pilot may be eligible for the executive exemption. We also do not
have sufficient information to determine if the Chief Pilot is an employee “[w]ho has the
authority to hire or fire other employees or whose suggestions and recommendations as to

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the hiring, firing, advancement, promotion or any other change of status of other
employees are given particular weight.” 29 C.F.R. §§ 541.100(a)(4) and
541.105. Only
if the Chief Pilot in fact possesses such authority would the executive exemption apply.

To qualify for the learned professional exemption, an employee’s primary duty must be
the performance of work requiring advanced knowledge in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual instruction. See 29
C.F.R. § 541.301. The Department has taken the position that pilots are not exempt as
learned professionals. We have maintained that aviation is not “a field of science or
learning” and that the knowledge required to be a pilot is not “customarily acquired by a
prolonged course of specialized intellectual instruction” within the meaning of the
regulations. See 69 Fed. Reg. 22,122, 22,156 (April 23, 2004); Wage and Hour Opinion
Letter FLSA-565 (Jan. 20, 1975) (copy enclosed).

The Wage and Hour Division, however, takes a position of non-enforcement with regard
to pilots and copilots of airplanes and rotorcraft who hold an FAA Airline Transport
Certificate or Commercial Certificate,
and who receive compensation on a salary or fee
basis at a rate of at least $455 per week, and who are engaged in the following activities:

(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.

See Wage and Hour Opinion Letter FLSA-505 (Feb. 7, 1992) (copy enclosed);
Wage and Hour Opinion Letter FLSA-585 (Sept. 2, 1975) (copy enclosed); Wage
and Hour Opinion Letter FLSA-565 (Jan. 20, 1975) (copy enclosed); Wage and
Hour Opinion Letter FLSA-387 (May 25, 1971) (copy enclosed).

This non-enforcement position does not apply to airplane and helicopter pilots engaged in
agricultural crop-dusting operations. This policy also does not relieve an employer from
compliance with the minimum wage and overtime pay standards for support and
maintenance personnel covered by the FLSA. In addition, this non-enforcement position
does not apply to employees, including pilots and copilots, subject to the provisions of
the McNamara-O’Hara Service Contract Act, the Davis-Bacon Act, and the Contract
Work Hours and Safety Standards Act, nor relieve any employer from any obligation

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incurred under a collective bargaining agreement or any liability incurred in a private suit
under section 16(b) of the FLSA.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).