FLSA2009-31 * — Consultants, clinical coordinators, coordinators, and business development managers under section 13(a)(1) Please see Opinion Letter FLSA2018-12.

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

FLSA2018-12
January 5, 2018
Dear Name*:
This letter responds to your request that the Wage and Hour Division (“WHD”) reissue Opinion
Letter FLSA2009-31. On January 16, 2009, then-Acting WHD Administrator Alexander J.
Passantino signed the opinion letter as an official statement of WHD policy. On March 2, 2009,
however, WHD withdrew the opinion letter “for further consideration” and stated that it would
“provide a further response in the near future.”
We have further analyzed Opinion Letter FLSA2009-31. From today forward, this letter, which
is designated FLSA2018-12 and reproduces below the verbatim text of Opinion Letter
FLSA2009-31, is an official statement of WHD policy and an official ruling for purposes of the
Portal-to-Portal Act, 29 U.S.C. § 259.
I thank you for your inquiry.

Bryan L. Jarrett
Acting Administrator

Dear Name*:
This is in response to your request for an opinion regarding whether Consultants, Clinical
Coordinators, Coordinators, and Business Development Managers employed by your company
qualify for exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA).
∗
It is our
opinion that they are exempt administrative employees.
You state that the company provides temporary medical professionals (TMPs), primarily
registered nurses, to hospitals (client facilities). The employees discussed below work at the
company’s headquarters and help support the TMPs and the client facilities. We understand the
Consultants, Clinical Coordinators, Coordinators, and Business Development Managers receive

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

at least $455 per week on a salary basis and, as discussed below, have authority to make
independent choices, free from immediate direction or supervision, in matters of significance.
Consultants
The Consultants’ primary duties include: generating referrals through networking, internet
searches, and job fairs; determining whether an individual has the skills and experience
necessary to be a TMP; determining the validity and appropriateness of candidate references;
determining through personal interviews the candidate’s work history, work ethic, sincerity,
credibility, interpersonal skills, strengths, weaknesses, and ability to work successfully;
recommending candidates for rejection; matching candidates to the appropriate client facility;
negotiating the TMP pay rates and benefits package; and supervising and counseling TMPs to
resolve such non-clinical issues as housing complaints, timeliness of payroll, insurance
documentation, and attendance problems. In a discussion with Wage and Hour Division (WHD)
staff, you stated that the Consultants, after screening and interviewing candidates for a specific
position available in a client facility, recommend the best candidate for hiring to the Clinical
Coordinator. The Clinical Coordinator then contacts the client facility to determine proper fit.
The Consultants’ recommendations for hiring are typically accepted. Once a client facility
decides to hire a TMP, Consultants are responsible for ensuring completion of the hiring process.
The Consultants then serve as supervisors for the TMPs working at client facilities, working to
resolve issues that may arise between the TMP and the client.
Clinical Coordinators
The Clinical Coordinators’ primary duties include serving as the company’s main resource on
clinical issues and the expert on company clinical requirements related to the licensing,
certification, and amount of experience necessary for TMP applicants based on state regulations
and individual hospital preferences; persuading client facilities to interview and select
candidates; making final determinations regarding the candidates’ employment eligibility;
negotiating with client facilities for bonuses and higher bill rates for exceptional candidates;
taking a lead role in preparing for reviews and audits conducted by hospital associations and the
Joint Commission for Accreditation of Healthcare Organizations (JCAHO); working with client
facilities to monitor the TMPs’ performance; serving as a second-line supervisor to counsel and
discipline TMPs regarding such clinical matters as shortcutting protocol procedures and such
behavioral issues as the TMP’s unprofessional conduct toward the patient’s family or the head
nurse; and training Consultants and other employees. Clinical Coordinators serve as primary
representatives to the company’s client facilities. They must be licensed nurses with at least
three years of acute care experience.
Coordinators
Coordinators perform the same duties as the Clinical Coordinators except that the Coordinators
do not serve as the company’s primary resource with respect to the clinical issues and
requirements described above. In your discussion with WHD staff, you noted that due to their
many years of experience, Coordinators can fulfill their job responsibilities without having a
registered nursing degree. Coordinators simply refer clinical questions with which they are
unfamiliar to the Clinical Coordinator.

Business Development Managers
The Business Development Managers’ (BDMs) primary duties include: analyzing existing
market conditions by geographic territory to determine the need for TMPs, competitors’
capabilities, and competitive billing and pay rates; analyzing the client facilities’ staffing needs,
bill rate tolerance, and contract expectations; preparing initial marketing materials that are
tailored to the client facilities’ expectations; developing, preparing, submitting, and monitoring
proposals in response to requests from current and prospective client facilities; developing
pricing strategies based on market conditions, analysis of client facilities’ past and current
service activity, their ongoing clinical needs and tolerance for bill rate increases, and the
company’s desired revenue and margin requirements; negotiating contractual terms and
conditions of the staffing agreements; negotiating revisions and writing addendums to current
agreements; serving as liaison between the client facility and the company to resolve service or
billing issues; and visiting current and prospective client facilities to develop or enhance
contractual relationships.
Section 13(a)(1) of the FLSA provides a minimum wage and overtime pay exemption for any
employee employed in a bona fide administrative capacity as defined in 29 C.F.R. Part 541. An
employee may qualify for the exemption if the salary and duties tests are met.
Under 29 C.F.R. § 541.200(a), “employee employed in a bona fide administrative capacity”
means “any employee”:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week ...;
(2) Whose primary duty is the performance of office or non-manual work directly related to
the management or general business operations of the employer or the employer’s
customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with
respect to matters of significance.
Id. The phrase “work directly related to the management or general business operations of the
employer or the employer’s customers” refers to work in such functional areas as research,
marketing, personnel management, and human resources. Id.; 29 C.F.R. § 541.201(b).
Moreover, section 541.202(b) cites several factors “to consider when determining whether an
employee exercises discretion and independent judgment with respect to matters of
significance,” including “whether the employee has authority to formulate, affect, interpret, or
implement management policies or operating practices; whether the employee carries out major
assignments in conducting the operations of the business; ... whether the employee has authority
to commit the employer in matters that have significant financial impact; ... whether the
employee provides consultation or expert advice to management; ... [and] whether the employee
investigates and resolves matters of significance on behalf of management.”
Section 541.203(e) further clarifies that “[h]uman resources managers who ... interpret or
implement employment policies ... generally meet the duties requirements for the administrative
exemption.” For example, “when the interviewing and screening functions are performed by the

human resources manager or personnel manager who makes ... recommendations for hiring from
the pool of qualified applicants, such duties constitute exempt work.” Id.
Consultants
We believe that the Consultants’ primary duties of screening, interviewing, and recommending
candidates for hiring; supervising and counseling TMPs to resolve such issues as housing
complaints and timeliness of payroll; and addressing client facility concerns regarding the TMPs’
attendance problems directly relate to the functional areas of personnel management and human
resources. Therefore, the Consultants’ primary duties involve the “performance of office or non-
manual work directly related to the management or general business operations of the employer”
and the employer’s clients. 29 C.F.R. § 541.200(a)(2).
Moreover, we believe that the Consultants’ primary duties “include[] the exercise of discretion
and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(3).
As noted previously, Consultants have authority to make independent choices, free from
immediate direction or supervision, in matters of significance. By screening, interviewing,
recommending for hiring, and negotiating the candidates’ compensation and benefits packages,
Consultants have “the authority to affect, interpret, or implement management policies or
operating practices.” 29 C.F.R. § 541.202(b). As described in section 541.203(e), duties such as
screening, interviewing, and recommending for hire that are performed, for example, by a human
resources manager (as opposed to a personnel clerk), constitute exempt work. As you
represented to WHD staff, Consultants’ hiring recommendations are generally followed by the
company, an example of Consultants’ independent decision-making authority. See29 C.F.R. §
541.200(a); 29 C.F.R. § 541.202(b). Additionally, by supervising and counseling TMPs and
addressing client facility concerns to resolve the issues noted above, Consultants “investigate and
resolve matters of significance on behalf of management.” 29 C.F.R. § 541.202(b).
Based on a review of the information provided, Consultants meet the requirements of 29 C.F.R.
§ 541.200(a)(1)-(3). Therefore, it is our opinion that the Consultants are exempt administrative
employees. See Wage and Hour Opinion Letter FLSA2005-45 (Oct. 25, 2005).
Clinical Coordinators and Coordinators
We believe that the Clinical Coordinators’ and the Coordinators’ primary duties of working with
client facilities to monitor TMPs’ performance; serving as second-line supervisors to counsel and
discipline TMPs regarding clinical and behavioral issues; and training Consultants and other
employees directly relate to the functional areas of personnel management and human resources.
See 29 C.F.R. § 541.201(b). Therefore the Clinical Coordinators’ and the Coordinators’ primary
duties involve the “performance of office or non-manual work directly related to the
management or general business operations of the employer” and the employer’s clients. 29
C.F.R. § 541.200(a)(2).
Moreover, we believe that the Clinical Coordinators’ and the Coordinators’ primary duties
“include[] the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a)(3). By serving as the company’s primary resource on
clinical issues, Clinical Coordinators “provide[] ... expert advice to management.” 29 C.F.R. §

541.202(b). Additionally, by taking a lead role in preparing for reviews and audits conducted by
hospital associations and the JCAHO, Clinical Coordinators and Coordinators “carr[y] out major
assignments in conducting the operations of the business.” Id. Also, by serving as second-line
supervisors to counsel and discipline TMPs regarding clinical and behavior issues, and training
Consultants and other employees, Clinical Coordinators and Coordinators “perform[] work that
affects business operations to a substantial degree.” Id. Finally, by making the final
determination regarding candidates’ employment eligibility and negotiating with client facilities
for bonuses and higher billing rates for exceptional candidates, Clinical Coordinators and
Coordinators have authority to “interpret, or implement management policies or operating
practices.” Id. Clinical Coordinators and Coordinators also assess client needs and serve as
primary contacts for clients, responsibilities that federal courts have found relevant in assessing
whether an employee exercises discretion and independent judgment. See 69 Fed. Reg. 22,144
(preamble to Part 541 regulation).
Based on a review of the information provided, Clinical Coordinators and Coordinators meet the
requirements of 29 C.F.R. § 541.200(a)(1)-(3). Therefore, it is our opinion that Clinical
Coordinators and Coordinators are exempt administrative employees. See Wage and Hour
Opinion Letter FLSA2005-45 (Oct. 25, 2005).
Business Development Managers
We believe that the BDMs’ primary duties of analyzing existing market conditions to determine
the need for TMPs, competitors’ capabilities, and competitive billing and pay rates; and
analyzing the client facilities’ staffing needs, bill rate tolerance, and contract expectations,
among others, directly relate to the functional area of research. See 29 C.F.R. § 541.201(b).
Additionally, the BDMs’ primary duties of preparing initial marketing materials that are tailored
to the client facilities’ expectations and visiting current and prospective client facilities to
develop or enhance contractual relationships directly relate to the functional area of marketing.
Id.
We also believe that the BDMs’ primary duties “include[] the exercise of discretion and
independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(3).
BDMs “perform[] work that affects business operations to a substantial degree” by analyzing
market conditions to determine the need for TMPs, competitors’ capabilities, and competitive
billing and pay rates; analyzing client facilities’ staffing needs, bill rate tolerance, and contact
expectations; and by developing pricing strategies based on the analyses. 29 C.F.R. §
541.202(b). Additionally, by negotiating contractual terms and conditions of the staffing
agreements and negotiating revisions to current agreements, BDMs have “authority to commit
the employer in matters that have significant financial impact.” Id. Also, by serving as liaison
between the client facility and the company to resolve service or billing-related issues, BDMs
“investigate[] and resolve[] matters of significance on behalf of management.” Id.
Based on a review of the information provided, BDMs meet the requirements of 29 C.F.R. §
541.200(a)(1)-(3). Therefore, it is our opinion that BDMs are exempt administrative employees.
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).