The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issues guidance to employers and individuals through Opinion Letters, Ruling Letters, Administrator Interpretations, and Field Assistance Bulletins. An “Opinion Letter” is an official written opinion by WHD of how a particular law that WHD enforces applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion.
In 2010, the DOL abandoned the use of Opinion Letters, and Administrative Interpretations (AIs) took their place. Rather than responding to employer questions, the AIs essentially consisted of declarations of the administration’s position on various issues related to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The AIs – which came very infrequently – did not provide detailed answers to employers’ questions about day-to-day administration of the Fair Labor Standards Act FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA.
On June 27, 2017, the DOL resumed issuing Opinion Letters. These guidance letters from the WHD’s Administrator (or an Acting Administrator) provide a potential good faith reliance defense for actions that otherwise may constitute violations of law. In other words, an employer may act in reliance on a DOL Opinion Letter when making employment decisions regarding the certain federal laws on which Opinion Letters have been issued, specifically including the FLSA.
Keeping this fact in mind, employers should be aware of two new Opinion Letters issued on April 12, 2018 by Bryan L. Jarrett, Acting Administrator of the WHD.
- The first (FLSA2018-18) is a letter regarding the compensability of travel time for hourly workers under the FLSA; and
- The second (FLSA2018-19) addresses whether an employee’s medically required 15-minute breaks (taken as FMLA time) are compensable under the FLSA.
Compensability of Travel Time:
Under the FLSA, compensable work time generally does not include time spent commuting to or from work, even if the job site varies from day to day. However, unlike that commuting time, travel from job site to job site during a workday must be counted as hours worked for purposes of calculating hours paid.
Additionally, travel away from home (flying to out-of-town assignments or training, for example) is “worktime” when it cuts across an employee’s regular work hours, regardless of whether the travel is on a weekday or weekend. Therefore, a Sunday afternoon flight to a Monday assignment will be counted as “worktime” if the employee’s workday was 9-to-5, and the flight was between those hours on Sunday.
However, how is compensability of that travel time determined if there is no regular workday? The WHD says, in Opinion Letter FLSA2018-18, that an employer may use one of three ways to “reasonably ascertain an employee’s normal working hours” for purposes of calculating compensable travel time: (1) review work records to find “typical work hours” during the most recent month of employment; (2) determine the average start and end times for that month; or (3) negotiate and agree with the employee as to a “reasonable” amount of compensable travel time. According to the WHD’s Opinion Letter, when an employer uses one of these methods to determine normal working hours for the purposes of determining compensable travel time, the WHD “will not find a violation for compensating employees’ travel time only during those working hours.”
Compensability of FMLA-Related Rest Breaks:
The WHD’s second Opinion Letter, FLSA2018-19, addresses the question of whether a non-exempt employee’s 15-minute rest breaks, mandated by the employee’s health care provider and covered under the FMLA, are compensable or non-compensable under the FLSA.
Under the FLSA, short rest breaks of up to 20 minutes that “primarily benefit the employer” ordinarily are compensable. However, short rest breaks primarily benefitting the employee are not compensable. According to the WHD’s Acting Administrator, FMLA-protected breaks given to accommodate an employee’s serious health condition would be for the primary benefit of the employee. He further points out that the FMLA itself provides that such breaks may be unpaid.
However, the Opinion Letter also includes one significant point for employers: employees who take FMLA-protected breaks must receive as many compensable breaks as their coworkers receive. He provides this example:
. . . [I]f an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, and employee needing a 15-minute break every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.
An Opinion Letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion Letters represent official statements of agency policy, and can be relied upon to provide insight into how the DOL would interpret the application of the laws on which the letters offer guidance.
However, it also is important to note that each Opinion Letter includes a caveat stating that the opinion offered in any specific letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should refrain from generalizing the decisions set forth in any letter, or attempting to extrapolate or stretch the opinion to fit facts that are not the same as those addressed in the Opinion Letter.