DOL Issues Opinion Letters and Fact Sheet Offering Guidance for FLSA and FMLA Compliance

The United States Department of Labor (DOL) recently issued three opinion letters which provide useful guidance for employers subject to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). Opinion letters serve as a means by which the public can develop a clearer understanding of what FLSA and FMLA compliance entails and may be relied upon as a good faith defense to wage claims arising under the FLSA.

On April 12, 2018, the DOL released opinion letters discussing the following: compensability of travel time for hourly technicians; whether rest breaks provided as reasonable accommodation are compensable; and what forms of lump-sum payments can be garnished for child support. The DOL also issued a fact sheet addressing when teachers, coaches, and other professionals who work at higher education institutions should be paid overtime.

Compensable Travel Time for Non-Exempt Employees

Opinion letter FLSA2018-18 discusses the compensability of travel time for non-exempt employees. The DOL pointed out that there are different methods that an employer may use to reasonably ascertain an employee’s normal work hours for purposes of determining compensable travel time under the FLSA. One option is to review the employee’s most recent month of time records to determine if a pattern exists that would establish normal working hours. As an alternative method, in the case in which employees have no normal work hours, the employer and employee may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.

The opinion letter also reconfirmed that when an employee is temporarily working at a fixed remote location, generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated. However, travel after arriving at work, is compensable.

Breaks as a Reasonable Accommodation

In FLSA2018-19, the DOL addressed whether a non-exempt employee’s 15-minute rest breaks, which are certified by a health care provider as required every hour due to the employee’s serious health condition and are thus covered under the FMLA, are compensable or non-compensable time under the FLSA. The DOL recognized that rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer and such breaks are “common in industry,” “promote the efficiency of the employee,” and “are customarily paid for as working time.” However, when the employee requires 15-minute breaks, eight times per day and solely due to the needs of the employee’s serious health condition, the breaks predominantly benefit the employee and are not compensable. The DOL noted that the FMLA expressly provides that FMLA-protected leave may be unpaid and it provides no exceptions for breaks up to 20 minutes in length. Thus, where an employee needed one 15-minute break per hour of work, the employee would not need to be paid for those breaks.

Earnings Subject to Garnishment under the CCPA

In CCPA2018-NA, the DOL discussed whether certain lump-sum payments from employers to employees are earnings for garnishment purposes under Title III of the Consumer Credit Protection Act (CCPA). Title III of the CCPA, among other things, limits the amount of an individual’s disposable earnings that may be garnished. The DOL recognized that earnings under the CCPA may include payments received in lump sums. In determining whether certain lump-sum payments are earnings under the CCPA, the opinion letter analyzed 18 types of lump sum payments, finding that commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit sharing, referral or sign-on bonuses, moving or relocation incentive payments, attendance awards, safety awards, cash service awards, retroactive merit increases, payment for working during a holiday, termination pay, and severance pay would qualify as earnings under the CCPA. The DOL also found that certain portions of workers’ compensation payments and insurance settlements could qualify as earnings but other portions, such as reimbursement for medical expenses, would not qualify as earnings. Lastly, the DOL determined that the buyback of company shares does not qualify as earnings.

White Collar Exemptions in Higher Education Institutions

Finally, Fact Sheet 17(s): Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act discusses the applicability of white collar exemptions to jobs that are common in higher education institutions. Specifically, the following positions are identified as typically exempt under the FLSA: (a) part-time teachers; (b) teachers who teach online or remotely; (c) teachers who spend a “considerable amount of time” in extracurricular activities (such as supervising student clubs); and (d) athletic coaches (but a coach will not qualify for the exemption if his or her primary duties are recruiting students to play sports or visiting high schools and athletic camps to conduct student interviews).

The following positions were determined to be exempt under the “learned professional exemption:” (a) public accountants; (b) psychologists; (c) certified athletic trainers; (d) librarians; and (e) post-doctoral fellows. The fact sheet indicated that the administrative exemption applies to: (a) admissions counselors; (b) student financial aid officers; (c) department heads; (d) intervention specialists; and (e) academic counselors. In addition, various positions in higher education institutions might qualify for the executive exemption, including deans, department heads, directors, and other managers or supervisors. Finally, the fact sheet discussed student employees and found that while graduate teaching assistants qualified for the teacher exemption, research assistants and student residential assistants are typically not considered employees under the FLSA.