Two New Opinion Letters from the DOL!
By Kevin M. Mosher • Apr 20, 2018
Understanding and applying workplace situations to the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) can be difficult and frustrating to say the least. In a continuing effort to provide clarification, on April 12, 2018 the Department of Labor (“DOL”) issued two opinion letters addressing compensation of breaks and travel. These letters are particularly exciting because the Obama Administration stopped issuing opinion letters years ago. It’s nice to see the DOL back in action doling out workplace compliance guidance!
ARE 15-MINUTE FMLA BREAKS COMPENSABLE?
The first letter addresses whether a non-exempt employee’s medically required fifteen minute break every hour is compensable (“working time”). To make this determination the DOL considered whether that time was predominantly spent for the employer’s benefit or for the employee’s. Short rest breaks up to twenty minutes in length have primarily been held to be a benefit to the employer and compensable, as the breaks are seen as “promoting the efficiency of the employee” and “giving the company a reenergized employee.” However, in this situation the breaks are FMLA-protected and for the benefit of the employee’s health; therefore, the DOL determined these breaks are not compensable. An important caveat – employees who take FMLA-protected breaks must still receive the same standard paid break as their coworkers.
DO HOURLY EMPLOYEES ALWAYS RECEIVE PAY FOR TRAVEL?
Even more exciting than the FMLA break question, in the second opinion letter the DOL was presented with a number of different travel scenarios regarding an hourly technician with no fixed hours or location of work in order to determine when travel is compensable. Generally, under the standards outlined in the Portal-to-Portal Act and the FLSA, compensable work time does not include time spent commuting to or from work regardless of whether the employee works at a fixed location or at different job sites, unless the time involved is extraordinary. However, travel from job site to job site during the workday is counted as hours worked and is therefore compensable. Also, where the employee is traveling away from home overnight, he or she is compensated for the time traveling during their normal working hours (even if it is Saturday or Sunday) but is not compensated for time spent traveling as a passenger on an airplane, train, boat, bus or automobile outside normal working hours.
To understand what the typical working hours are when an employee does not have normal working hours, the DOL clarified that the employer can take a couple of approaches: (1) review the employee’s time records to see if a work pattern is revealed that establishes regular work hours; or (2) the employer and employee may agree to a reasonable timeframe for compensable travel. Neither travel time from a hotel to the work site needs to be compensated, nor does use of a company-provided vehicle alone make an ordinary commute compensable if the travel is within the normal commuting area for the employer’s business. Lastly, if an employee is offered public transportation but chooses to drive his or her own car, the employer can count as hours worked the time spent driving to the location or the time that would have been spent taking public transportation.
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