The U.S. Department of Labor (“DOL”) returned to its longstanding practice of issuing wage and hour guidance. Specifically, its Opinion Letters are a useful tool for employers to understand how the DOL interprets certain provisions of the Fair Labor Standards Act (“FLSA”), and can be used as a good faith for a claim.
On January 5, 2018, the DOL reissued 17 of 20 Opinion Letters that were issued during the Bush Administration on the last day (but withdrawn by the Obama Administration citing a mailing technicality). Three of those letters remain withdrawn for further consideration (tip credits and premium pay under the fluctuating workweek method). In addition, on April 12, 2018, the DOL issued two new Opinion Letters. Below is a brief overview of the two new Opinion Letters, which can be found on the DOL’s website: https://www.dol.gov/whd/opinion/guidance.htm. Keep in mind that Opinion Letters are written in response to one employer’s set of facts, and so employers should carefully read the facts to see if there are any differences that may change the outcome.
Opinion Letter FLSA2018-18 – Compensability of Travel Time
The DOL clarified when to pay a non-exempt (hourly) employee for travel time, specifically, when the worker travels to a different job site each day and does not have set hours. Travel away from home communities is worktime when it “cuts across the employee’s workday,” which includes the same normal work hours on a weekend day as well (i.e., 9 to 5). This Opinion Letter addresses such travel when the employee does not have “normal” work hours.
Background Facts: Hourly technicians do not have a fixed location, but work at varying customer locations each day. They have no fixed schedule, though they often start at 7 a.m., and often work between 8 and 12 hours, sometimes having to spend the night and complete the service the following morning. Occasionally, technicians travel out of town for training. They are provided with vehicles to use for personal and business, and all fuel and maintenance is paid for by the employer. The Opinion Letter responds to the three scenarios accordingly:
Scenario 1: “An hourly technician travels by plane from home state to New Orleans on a Sunday for a training class beginning at 8:00 a.m. on Monday at the corporate office. The class generally lasts Monday through Friday, with travel home on Friday after class is over, or, occasionally, on Saturday when Friday flights are not available.”
- The key question is – when is travel time is compensable when there is no regular workday?
- The DOL “scrutinizes” claims that employees don not have regular or normal work hours because time records usually work patterns emerge (in other words, a defense that there is no “normal workday” is usually unsupported).
- Assuming there is no regular workday, an employer can choose the average start and end times for the employee’s workday. The employer and employee (or representative) can also negotiate and agree on a reasonable amount of time which travel outside of the home community is compensable. When these methods are used, no violation will be found for compensating employees only during those hours.
- If the employee chooses to drive instead of ride as a passenger in a plane, the employer may choose to count as “hours worked” either the time spent driving the car (recall they are not a passenger so that time is paid) or time that it would have counted as hours worked if the employee had taken the plane.
- Time between a hotel and the remote work site is considered home-to-work travel and not compensable.
Scenario 2: “An hourly technician travels from home to the office to get a job itinerary and then travels to the customer location. The travel time from home to office varies depending on where the technician lives and can range from 15 minutes to 1 hour or more. All of this travel is in an assigned company vehicle.”
- Time spent commuting between home and work is not compensable.
- Travel between sites after arriving at work is compensable.
- If an employee is required to report to a meeting place or pick up tools, travel from that site to the job site is part of the day’s work, regardless of contract, custom or practice.
Scenario 3: “Hourly technicians drive from home to multiple different customer locations on any given day.”
- Same outcome as Scenario 2 above.
Opinion Letter FLSA2018-19 – Compensability of Frequent Rest Breaks Required by a Serious Health Condition
Opinion Letter FLSA2018-19 addresses the compensability of frequent breaks. As the DOL notes, most employers provide employees a 20 minute (or less) paid break in the morning, a 30 minute (or more) unpaid lunch break, and 20 minute paid afternoon break. In this case, several employees had a serious medical condition under the Family Medical Leave Act (“FMLA”) that required a 15 minute break every hour. Accordingly, out of an 8 hour day, the employees were only working 6 hours. The question posed by the employer was whether that time needed to be paid since it was less than 20 minutes (and the Supreme Court has held that rest breaks up to 20 minute are ordinarily compensable as they are for the benefit of the employer).
The DOL concluded that an employee who uses intermittent FMLA for additional breaks need not be paid for that time outside of the normal 20 minute break provided to all employees (i.e. the morning and afternoon break). The DOL concluded that neither the FLSA nor the FMLA require that the breaks be paid, except that, “employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive”. This opinion letter is a great reminder to employers of the interplay between the FMLA and FLSA (and often ADA).