The U.S. Department of Labor recently issued a series of new Opinion Letters and a new Fact Sheet. In the course doing so, the Secretary of Labor restored the practice of issuing these important guidance documents which had been otherwise abandoned under the previous administration. Opinion Letters remain a useful tool for employers to ensure compliance with the Fair Labor Standards Act (“FLSA”) and other related laws. Opinion Letters provide clarification of the law. Importantly, reliance upon their content can, in certain circumstances, provide a complete affirmative defense to all monetary liability if an employer can plead and prove it acted “in good faith in conformity with and in reliance on” an Opinion Letter. 29 U.S.C. § 259; see also 29 C.F.R. Part 790. For these reasons, employers should familiarize themselves with their content. The new Opinion Letters and Fact Sheet are summarized as follows:
Opinion Letter FLSA2018-18 addresses the compensability of travel time under the FLSA, considering the case of hourly-paid employees with irregular work hours who travel in company-provided vehicles to different locations each day and are occasionally required to travel on Sundays to the corporate office for Monday trainings. The Opinion Letter reaffirms the following: First, as a general matter, time is compensable if it constitutes “work” (a term not defined by the FLSA). Second, “compensable worktime generally does not include time spent commuting to or from work.” Third, travel away from the employee’s home community is worktime if it cuts across the employee’s regular workday. Fourth, “time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile” is not worktime.
With these principles in mind, this letter provides two non-exclusive methods to reasonably determine normal work hours for employees with irregular schedules in order to make an ultimate judgment call on the compensability of travel time. Under the first method, if a review of an employee’s hours during the most recent month of regular employment reveals typical work hours, the employer can consider those the normal hours going forward. Under the second method, if an employee’s records do not show typical work hours, the employer can select the average start and end times for the employee’s work days. Alternatively, where “employees truly have no normal work hours, the employer and employee … may negotiate … a reasonable amount of time or timeframe in which travel outside the employees’ home communities is compensable.” Crucially, an employer that uses any of these methods to determine compensable travel time is entitled to limit such time to that accrued during normal work hours.
Opinion Letter FLSA2018-19 addresses the compensability of 15-minute rest breaks required every hour by an employee’s serious health condition (i.e., protected leave under the FMLA). Adopting the test articulated by the Supreme Court in the Armour decision—whether the break primarily benefits the employer (compensable) or the employee (non-compensable)—the letter advises that short breaks required solely to accommodate the employee’s serious health condition, unlike short, ordinary rest breaks, are not compensable because they predominantly benefit the employee. The letter cautions, however, that employers must provide employees who take FMLA-protected breaks with as many compensable rest breakers as their coworkers, if any.
Opinion Letter CCPA2018-1NA addresses whether certain lump-sum payments from employers to employees are considered “earnings” for garnishment purposes under Title III of the Consumer Credit Protection Act (the “CCPA”). The letter establishes the central inquiry as whether the lump-sum payment is compensation “for the employee’s services.” The letter then analyzes 18 types of lump-sum payments, concluding that commissions, bonuses, incentive payments, retroactive merit increases, termination pay, and severance pay, inter alia, are earnings under the CPA, but lump-sum payments for workers’ compensation, insurance settlements for wrongful termination, and buybacks of company shares are not.
Fact Sheet #17S addresses the FLSA’s minimum wage and overtime requirement exemptions for employees who perform bona fide executive, administrative, professional, and outside sales duties (known as the “white collar exemptions”) in the context of higher education institutions. Specifically, the letter provides guidance as to the exempt status of faculty members, including coaches, non-teacher learned professionals (e.g., CPA’s, psychologists, certified athletic trainers, librarians, and post-doctoral fellows), administrative employees (e.g., admissions counselors and student financial aid officers), executive employees (e.g., department heads, deans, and directors), and student-employees (i.e., graduate teaching assistants, research assistants, and student residential assistants). Of note, the letter confirms that the DOL is undertaking rulemaking to revise the regulations that govern the white-collar exemptions.
Christopher K. Collotta, Esq. March 8, 2018