by, Laurene Rogers
Last summer, the U.S. Department of Labor (DOL) reinstated its practice of issuing opinion letters – official statements of DOL policy – to employers and employees regarding application of the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The requirements of the FLSA and the FMLA are set forth in statutes and regulations that are complex, often making compliance difficult. Interested parties can seek explanations from the Wage and Hour Division of the DOL regarding what the FLSA and the FMLA require in certain fact-specific circumstances. These explanations come in the form of DOL Opinion Letters that address application and compliance issues related to these Acts and can be relied upon as official guidance. Importantly, employers can also rely on these Opinion Letters when defending employee wage claims under the FLSA. If an employer relies on a DOL Opinion Letter and a court later decides that the Opinion Letter does not accurately apply the law, the employer may be able to establish a “good faith” defense to avoid liability.
Rest Breaks Under the FMLA
On April 12 of this year, the DOL issued an Opinion Letter clarifying that an employee’s 15-minute rest break to accommodate a serious health condition is not compensable. Generally, employers are required to compensate an employee for breaks of 20 minutes or less because they benefit the employer. However, when an employee requires a break for his or her own serious health condition (one that is doctor-certified and qualifies for intermittent FMLA leave), the break benefits the employee and does not need to be paid. Employers should note that employees receiving unpaid FMLA breaks must receive as many compensable rest breaks as their co-workers receive. For example, if an employer grants its employees two paid 15-minute breaks in an 8-hour shift, the employee who needs a 15-minute rest break every hour because of a serious health condition must also be paid for two 15-minute breaks during the 8-hour shift.
Compensability of Travel Time for Non-Exempt Employees
The DOL’s April 12 Opinion Letter also clarified that non-exempt employees (those who are subject to FLSA wage provisions, including overtime) are entitled to be compensated for all time spent in travel (outside of regular commuting) during normal work hours. To determine the normal hours of an employee who works irregular hours, the April 12 letter provided an employer with two options: (1) review monthly time records to determine if a pattern exists to establish regular working hours; or (2) employers and employees may agree as to what comprises a regular work day.
In another Opinion Letter, the DOL analyzed what type of lump sum payments to employees qualify as earnings subject to wage garnishment under Title III of the Consumer Protection Act. The DOL found that the following lump sum payments can be subject to wage garnishment: 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 a holiday, termination pay, and severance pay. In addition, certain portions of workers’ compensation payments and insurance settlements (not reimbursement for medical expenses) may also qualify as earnings.