In January 2018, the U.S. Department of Labor (DOL) returned to its practice of issuing opinion letters in response to specific employer inquiries, after an almost 10-year hiatus. Under the Obama administration, the DOL abandoned the practice in favor of broader administrative interpretations summarizing the DOL’s interpretation of laws. Building on its demonstrated preference for opinion letters, on April 12 the DOL issued three new opinion letters.
The first opinion letter (FLSA2018-18) addresses (1) whether an hourly technician must be paid for travel time if traveling by plane from his home state to another; and (2) whether certain commutes are compensable. According to the DOL, if the flight cuts across the employee’s regular work day, the time must be paid. Conversely, time spent in travel away from home outside of regular working hours as a passenger is not considered compensable time. In response to the second issue, the DOL notes (1) that compensable work time generally does not include time spent commuting between home and work, even when the employee works at different job sites; (2) travel from job site to job site during the workday must be counted as hours worked; and (3) use of a company vehicle alone does not make otherwise noncompensable travel time compensable.
The second opinion letter (FLSA2018-19) addresses whether an employee who takes 15-minute rest breaks every hour due to his or her own continuing serious health condition should be paid during those breaks. The DOL takes the position that the answer depends on whether or not the breaks predominately benefit the employee or the employer. Although short rest breaks up to 20 minutes have been deemed to promote employee efficiency and are therefore for the benefit of the employer, the breaks proposed in the letter would be covered by the Family and Medical Leave Act (“FMLA”). Employees who take FMLA-protected breaks must receive as many compensated rest breaks as employees not on FMLA, but where they seek additional breaks under the FMLA, those breaks need not be paid.
Finally, in its third new opinion letter (CCPA2018-1NA), the DOL identified 15 of 18 possible forms of employee payment (e.g. bonuses, attendance awards, holiday pay, etc.) that should always be garnished for child support under the Consumer Credit Protection Act (“CCPA”). In defining earnings subject to garnishment, the DOL advised that the primary analysis is whether the payment by the employer is in exchange for personal services. If not (e.g. workers compensation, buybacks of company shares, etc.), then such amounts are not earnings subject to garnishment under the CCPA.
Employers should stay tuned for future opinion letters. In addition to clarifying the law, under the Portal-to-Portal Act, they provide an 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 790.13.
