The DOL Has Begun to Issue Opinion Letters Again – And You Should Read Them

Under President Obama, the U.S. Department of Labor stopped issuing specific Opinion Letters[1] in 2009, in favor of issuing more general Guidance. After President Trump took office, the DOL announced that it would begin to once again issue Opinion Letters. This is a good thing for employers. Although the Opinion Letters do not have the force and effect of law, they do tell us how the DOL is going to interpret the law.

On April 12, 2018, the DOL issued two new Opinion Letters, each dealing with specific aspects of the Fair Labor Standards Act.

In the first Opinion Letter, an employer asked if it was required to compensate non-exempt employees for fifteen (15) minute breaks that it was required to allow employees under the Family and Medical Leave Act. The employee’s physicians certified that they needed to take a fifteen minute break every hour (eight, fifteen minute breaks in an eight hour shift). The DOL acknowledged that such breaks were primarily for the benefit of the employees in question and that the FMLA states that FMLA-required breaks may not be compensable time. As such, the DOL indicated that the breaks were not compensable time. However, the DOL also noted that the employees who were taking FMLA-protected breaks were nonetheless also entitled to the same paid breaks as their co-workers. So, if the employer allowed all of its employees to take two, paid fifteen minute breaks a day, then the two employees taking eight, fifteen minute breaks a day should be paid for at least two of those breaks.

In the second Opinion Letter, the employer asked if it was required to compensate its non-exempt employees for work-related travel under certain scenarios.

First, the employer asked what it had to pay an employee who flew out of state on a Sunday for work-required training lasting from 8:00 A.M. to 4:00 P.M., Monday through Friday. The DOL recited the standard that travel time away from home and lasting overnight is compensable when it cuts across the employee’s usual working hours, even when the travel is on a weekend and the employee does not usually work on weekends. Thus, if the employee usually works from 9 to 5, Monday through Friday, and the employee traveled on Sunday from 10 A.M. to 7 P.M to get to the training, the employer would be obligated to pay the employee from 10 A.M. to 5 P.M. for travel on Sunday.  (Of course, the employer would also be obligated to pay the employee for any time during the travel that the employee actually performed work.)

Second, the employer asked if it had to compensate the employee for time spent commuting from his hotel to the place where the training took place in the foreign city. The DOL stated that when the employee is temporarily engaged in working or training at a fixed, remote location, the travel time from the hotel to work and back would usually be considered ordinary home-to-work travel and would not be compensable. This answer may be different if the commute at the out-of-town training was significantly longer than the employee’s usual commute at home.

Third, the employer asked if it was required to compensate employees, specifically crane technicians, for time spent driving to the customer’s place of business to repair cranes if they were first required to stop at the employer’s shop to get their job itineraries for the day. The DOL stated that travel from job site to job site during the day is generally compensable time. Further, when an employee is required by the employer to report to a meeting place to receive instructions, pick up tools or otherwise “perform work”, the travel from the meeting place to the work place is also compensable time. (Be careful if you ask employees to give co-workers a ride or to pick up materials needed for work on their way to a job site.)

The FLSA is a nuanced law, and it is very easy to inadvertently make a mistake. Unfortunately, employers are often unaware that they have made a mistake until they are sued or the DOL has begun an audit. I would encourage all employers to review their compensation practices to ensure that they conform to the requirements of the FLSA. FLSA class actions are a booming and lucrative area of the law for plaintiff’s lawyers. You don’t want to be caught unaware.

[1] Opinion Letters are responses to written questions posed to the DOL by employers.

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