DOL issues guidance on breaks, travel time, and earnings subject to garnishments

by McAfee & Taft

For more than 70 years, the U.S. Department of Labor’s Wage and Hour Division provided employers and attorneys with a valuable resource for determining how to comply with the federal laws and regulations the agency enforces. These opinion letters, which serve as an official statement on DOL policy, not only discuss how a specific law applies to a certain set of facts presented by the requestor, but they can also be relied upon as a good faith defense to wage claims arising under the Fair Labor Standards Act. Moreover, they can be relied upon as official guidance for other employers subject to the FLSA and Family and Medical Leave Act.

This practice of issuing opinion letters ceased in 2010, but last summer, U.S. Secretary of Labor Alexander Acosta announced that the DOL would resume this long-standing practice. On January 5, 2018, the DOL issued more than a dozen opinion letters. Last week, additional letters were issued.

Breaks as an employee accommodation

The first opinion letter discussed whether breaks given to accommodate an employee’s serious, FMLA-certified health condition needed to be paid. In general, employers are required to pay for breaks that are 20 minutes or less. The logic behind this is that short breaks are typically for the benefit of the employer. However, when the employee requires a break for their own serious health condition (as certified by a doctor and qualifying for intermittent FMLA leave), the break is for the employee’s benefit and does not need to be paid. Thus, where an employee needed one 15-minute break per hour of work, those breaks would not need to be paid. Employers should be aware that employees receiving unpaid FMLA-protected breaks still must receive as many paid rest breaks as coworkers who do not need any accommodation.

Non-commuting travel time

The second opinion letter discussed the compensability of travel time for non-exempt employees. The opinion letter reinforced the DOL’s rules concerning when travel is and is not compensable under the FSLA. As has always been the case, employees’ time spent commuting from their home (or hotel in the event of an employee who is traveling for work) is not compensable as time worked. However, when employees travel for work (outside regular commuting to or from the office or directly from home to a customer’s place of business), they are entitled to be compensated for all time spent in travel during normal hours of work. The April 12 letter answers the vexing question about what is considered normal work hours for employees with irregular schedules. The letter provides two options for employers in determining normal working hours: (1) employers may review the employee’s most recent monthly time records to determine if a pattern exists sufficient to establish regular working hours; or (2) employers may negotiate with the employee and come to an agreement about what comprises the regular work day.

Earnings subject to garnishment

The third opinion letter discussed whether certain lump payments were considered earnings under the Consumer Credit Protection Act (CCPA). Title III of the CCPA limits the amount of an individual’s disposable earnings that may be garnished. The DOL provided analysis on 18 different types of lump sum payments and discussed whether they qualified as earnings. Earnings under the CCPA can include payments received in a lump sum when the payment is made for services provided by the employee. The DOL found that commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit sharing, referral or sign-on bonuses, moving or relocation incentive payments, attendance awards, safety awards, cash service awards, retroactive merit increases, payment for working during a holiday, termination pay, and severance pay would qualify as earnings under the CCPA. The DOL also found that certain portions of workers’ compensation payments and insurance settlements could qualify as earnings but other portions, such as reimbursement for medical expenses, would not qualify as earnings. Finally, the DOL determined that the buyback of company shares does not qualify as earnings.

White collar exemptions in higher education

Finally, Fact Sheet 17(s): Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act identifies several positions that qualify for white collar exemptions in higher education institutions. Specifically, the following positions are identified as typically exempt under the FLSA: (a) part-time teachers; (b) teachers who teach online or remotely; (c) teachers who spend a “considerable amount of time” in extracurricular activities (such as supervising student clubs); and (d) athletic coaches (so long as the majority of the coach’s time is not spent recruiting). The following positions were determined to be exempt under the “learned professional exemption:” (a) public accountants; (b) psychologists; (c) certified athletic trainers; (d) librarians; and (e) post-doctoral fellows. The fact sheet identified several positions exempt under the administrative exemption: (a) admissions counselors; (b) student financial aid officers; (c) department heads; (d) intervention specialists; and (e) academic counselors. Additionally, higher education institutions can apply the executive exemption to deans, department heads, directors, and other similar employees. Finally, the fact sheet discussed student employees and found that while graduate teaching assistants qualified for the teacher exemption, research assistants and student residential assistants are typically not considered employees under the FLSA.

Final thoughts

None of these fact sheets or opinion letters altered any existing law. However, it is significant that the DOL has made the decision to move forward with issuing new guidance even though Cheryl Stanton, President Trump’s nominee to head the Wage & Hour Division of the DOL, has not been confirmed by the Senate. The continued issuance of additional opinion letters can provide employers with guidance in how to comply with the FLSA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McAfee & Taft | Attorney Advertising

Written by:

McAfee & Taft

McAfee & Taft on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.