By: Claudia D. Orr
For more than 70 years, the Wage and Hour Division of the Department of Labor (“DOL”) had issued “opinion letters” providing guidance to employers seeking direction on discrete issues. But this practice ended under the Obama Administration in 2010. However, in June 2017, the DOL announced that this service would be reinstated, and it has. The DOL recently issued two opinion letters addressing compensation for frequent 15-minute breaks taken under the Family and Medical Leave Act (“FMLA”) and for non-exempt employees’ travel time. Let’s see how these discrete issues were framed by employers and addressed by the DOL.
First, an employer asked whether it had to compensate an employee who was seeking intermittent FMLA leave at the frequency/duration of one 15-minute break every hour during the work day, thus reducing the employee’s work during an 8-hour shift to just 6 hours. The DOL began with the general rule set forth in 29 CFR 785.18 that any rest period of 20 minutes or less must be compensated because such breaks primarily benefit the employer by having a reenergized employee thereby promoting efficiency. However, the DOL recognized that, in some circumstances, short rest breaks may be primarily for the employee’s benefit and need not be compensated. Citing, Spiteri v AT&T Holdings, Inc, 40 F Supp 3d 869 (ED Mich, 2014)(frequent breaks to accommodate an employee’s back pain were for employee’s benefit and did not need to be paid).
In the new opinion letter, the employee was seeking FMLA leave, as an accommodation for the employee’s serious health condition. FMLA leave may be unpaid. Thus, these short rest periods do not have to be paid. However, the employee remains entitled to take the same number of paid breaks as all other employees. Thus, if the employer generally grants two 15-minute paid breaks to its non-exempt (hourly) employees, this employee must also receive two 15-minute paid breaks, but the other six breaks may be unpaid. DOL Opinion Letter FLSA 2018- 19.
In the second opinion letter, the DOL addressed travel time under the Fair Labor Standards Act (“FLSA”). DOL Opinion Letter FLSA 2018-18. Generally, an employer must compensate a non-exempt employee for all hours actually worked, which includes travel time within a work day. Travel to work at the beginning of the shift and travel home at the end of the day is generally unpaid under the Portal to Portal Act which amended the FLSA in 1947. But these are very basic principles that quickly become complicated when an employee travels in an emergency situation, on a one-day assignment in another city, overnight away from their home community, or on their day off.
When an employee travels on business overnight and on her day off, the analysis begins with a focus on the employee’s “normal work hours.” Generally, if the travel occurs outside of normal work hours, it is not compensable, but if it is within normal work hours, it is. The idea being that the employee is substituting travel during the normal working hours for other duties. For example, if an employee who generally works Monday – Friday 9am to 6pm, travels on an overnight trip on Sunday from 4pm to 8pm, only two hours of the travel time is compensable (4pm to 6pm) because this travel cut across the employee’s normal work hours. This general rule gets further complicated by the mode of transportation, and whether the employee is a passenger.
If you do not have a brain cramp yet, you will when you hear this employer’s issue. How do you make this determination when the employee has no fixed or “normal” work hours? First, the DOL cautioned that it carefully scrutinizes an employer’s claim that an employee has no regular working hours. However, if time “records do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee’s workdays. As another alternative, in the rare case in which employees truly have no normal work hours, the employer and employee (or the employee’s representatives [i.e., the union]) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.”
The DOL indicated that, generally, these two methods will be appropriate and not result in finding a violation, but there may be other reasonable methods. The DOL’s letter continued addressing several other specific issues raised by the employer including what happens when an employee decides to drive their car instead of travel by plane, etc. No kidding, the regulations make these kinds of distinctions, making a well-drafted compliant travel policy important for employers having non-exempt employees who travel.
As you can see, the opinion letters are fact specific and not all requests result in a response. However, when issued, the opinion letters fill in many of the gaps left by the regulations and court opinions. Thank you DOL. If you have a wage/hour issue, you should consult with an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2018.