DOL Announces Two New Opinion Letters: Tackles Travel Time and Breaks

On April 12, 2018, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) announced three new wage and hour opinion letters. The DOL only recently resumed issuing opinion letters on June 27, 2017, after having abandoned the practice several years prior.

In 2010, the DOL started using administrative interpretations (AIs) in place of opinion letters. Rather than responding to employer questions, the AIs essentially consisted of declarations of the administration’s position on various Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) issues. The AIs—which came very infrequently—did not provide detailed answers to employers’ questions about day-to-day administration of the FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA.

Keeping this history in mind, employers should be aware of the significance of WHD Acting Administrator Bryan L. Jarrett’s two opinion letters on travel time and employee breaks:

1. FLSA2018-18 is a letter regarding the compensability of travel time for hourly technicians under the FLSA.
2. FLSA2018-19 addresses whether an employee’s medically required 15-minute breaks (taken as leave under the FMLA) are compensable under the FLSA.

FLSA2018-18: Compensability of Travel Time

Compensable work time generally does not include time spent commuting to or from work, even if an employee’s job site varies from day to day. However, unlike 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? An employer may use one of three ways to “reasonably ascertain an employee’s normal work hours” for purposes of calculating compensable travel time: (1) review an employee’s work records to find “typical work hours” during the most recent month of employment; (2) if the employer is not able to determine the employee’s typical work hours, determine the average start and end times for that month; or (3) “in the rare case in which employees truly have no normal work hours,” 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 only during those working hours.”

FLSA2018-19: Compensability of FMLA-Related Rest Breaks

The WHD’s second opinion letter 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 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 “primarily benefit the employee and therefore are not compensable.” 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. The opinion letter provides the following 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 15-minute rest breaks 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.

Summary

WHD guidances such as opinion letters from the WHD’s administrator (or an acting administrator) may provide employers with a potential good faith reliance defense for actions that otherwise may constitute violations of law. In other words, an employer may be able to act in reliance on an opinion letter when making employment decisions regarding certain federal laws, including the FLSA and the FMLA, on which opinion letters have been issued.

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.

Note that on April 12, the WHD also issued an opinion letter on “earnings” protected by the deduction caps in the Consumer Credit Protection Act. Our recent article, “WHD Opinion Letter Finally Resolves Question Surrounding Lump-Sum Payments and Garnishments,” covers this third new opinion letter in detail.