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Department Of Labor Issues New FLSA Guidance

Published by on April 20, 2018

The Department of Labor’s Wage and Hour Division issued three new opinion letters concerning compliance with the Fair Labor Standards Act.

For the first time since 2009, the Department of Labor (DOL) issued three wage and hour opinion letters. In 2010, the DOL ceased its 70 year history of issuing opinion letters to promulgate agency policy. In June 2017, Secretary R. Alexander Acosta announced that the DOL would resume the informal process of issuing opinion letters. Opinion letters represent the DOL’s application of a particular law to the requesting party’s specific circumstances. Last week, the Wage and Hour Division issued three opinion letters addressing the following FLSA compliance issues:

  • FLSA2018-19 addresses whether the employer must compensate an employee for hourly 15-minute breaks that are certified by a healthcare provider as required due to an employee’s serious health condition, and thus covered under the Family Medical Leave Act (FMLA). The FLSA does not expressly define what constitutes compensable work, but the Supreme Court held that compensability depends on whether the time predominantly benefits the employer or the employee. Rest breaks up to 20 minutes are generally compensable and commonly provided to employees; however, the hourly 15 minute breaks differ because they predominantly benefit the employee as an accommodation for a serious health condition, and therefore, need not be compensated. The Department also stated that it was important to note that employees who take FMLA protected breaks must receive as many compensated breaks as their peers.
  • FLSA2018-18 provides the Department’s opinion on whether travel time for hourly technicians is compensable under the FLSA. The opinion letter first set out the general legal principles regarding travel time. Specifically, the Portal to Portal Act states that compensable work does not include commuting time to or from work, regardless of whether the employee works at a fixed location or different job sites. Unlike ordinary commute time, however, travel from job site to job site during the workday must be counted as compensable time. Additionally, travel away from the employee’s home community overnight that cuts across the workday must also be compensated. As an enforcement policy, however, the DOL does not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. The opinion letter then applied these principles to the three specific travel scenarios regarding hourly technicians.
  • CCPA2018-1NA discussed whether 18 different types of lump-sum payments by an employer to an employee could be garnished for child support as earnings under Title III of the Consumer Credit Protection Act (CCPA). A payment will be considered earnings and subject to garnishment limitations under the CCPA if they are paid in exchange for the employee’s personal services. The DOL provided a non-exhaustive list of example lump sum payments that qualified as earnings, including (but not limited to) commissions, bonuses profit sharing, and severance payments. The DOL also provided examples of payments where certain portions of the payment qualify as earnings under the CCPA (such as workers’ compensation and insurance settlements), and where no portion of the payment would qualify as earnings (buyback of company shares).

Welter Insight

An employer may be able to act in good faith reliance on these opinion letters when making employment decisions regarding the issues addressed in the letters under the FLSA, FMLA, and CCPA. It is important to note, however, that each opinion offered in the opinion letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should exercise caution in trying to stretch or generalize the opinions to fit facts that are not analogous to those contained in the opinion letter.

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