Case: 11-2125

7.

Document: 006111180240

Filed: 01/10/2012

Page: 73

The DOL Issues an Opinion Letter in 2006 Declaring Loan

Officers Covered by the Administrative Exemption,
Completely Undoing the Settled Regulatory Scheme

On September 8, 2006, the DOL issued the opinion letter Davis had
requested. See Wage and Hour Opinion Letter FLSA2006-31 (Sept. 8, 2006).35
Consistent with Daviss request, the opinion letter assumed that the hypothetical
loan officers did not have sales as their primary dutyin other words, the letter
assumed the very conclusion Davis and his connections at the DOL sought to
achieve. Id. On the application of the administrative exemption to the assumed
facts, the letter concluded that [s]imilar to the employees discussed in the 2004
preamble in the John Alden, Hogan, and Wilshin casesall of whom were found
to satisfy the duties requirements of the administrative exemptionthe employees
here service their employers financial services business by marketing, servicing,
and promoting the employers financial products. Opinion Letter FLSA2006-31 at
5. Despite extensive discussion of John Alden, Hogan, and Wilshin, the letter did
not citelet alone discuss or attempt to distinguishthe Conseco decision, where
the court concluded mortgage loan officers were non-exempt as a matter of law.
Such an omission would be surprising (and somewhat embarrassing) under normal
circumstances, as even a brief discussion of Conseco would have confirmed that
the 2006 letter reached the incorrect conclusion. But, of course, the omission made

35

Available at
http://www.dol.gov/WHD/opinion/FLSA/2006/2006_09_08_31_FLSA.pdf.
59