The Revival of FLSA Opinion Letters from the USDOL


The Wage and Hour Division of the U.S. Department of Labor issued its first opinion letters in nearly a decade this past Thursday.  Opinion letters contain meaningful compliance assistance from the Department of Labor, and are responses to real-world questions posed by employers to the DOL.  Under the Obama Administration, the DOL had ended the practice of issuing policy guidance in this manner.  The current administration, led by Secretary Acosta, revived the practice, notably “resuscitating” 17 previously unreleased opinion letters on January 5, 2018.

Let’s take a look at what’s included in the latest release of FLSA Opinion Letters:

In this letter, the requester asked whether nonexempt employees, with FMLA certifications directing the employer to permit them 15 minute breaks each hour, are entitled to be paid for those breaks.   The DOL opined that while breaks of 20 minutes or less are generally compensated under the Fair Labor Standards Act, the breaks at issue here “primarily benefit the employee.”   The DOL pointed to a federal decision from the Eastern District of Michigan, noting that an employee is not entitled “to take an unlimited number of personal rest breaks during the day and be compensated for all such breaks, as long as they are less than 20 minutes in duration.”   The DOL thus found that in instances where an employee takes breaks shorter than 20 minutes as part of a reasonable accommodation or grant of FMLA leave, those breaks are non-compensable.

Importantly, the DOL further found that if employees routinely receive breaks, an employee who is receiving breaks for FMLA reasons is still entitled to the compensated breaks afforded other employees.  So if all employees are given two paid 15 minute breaks during their shifts, the employee on FMLA would similarly be entitled to the two paid breaks, in addition to the additional uncompensated breaks that are called for by his or her physician.

In this matter, the writer asked whether its crane operators must be paid for certain travel time.  For example, an employee travels from his home state on Sunday so that he can attend a training class beginning at 8:00 a.m. the following Monday.   Another example provided is a worker who travels from job site to job site throughout the course of his workday.

In the first example, the DOL determined that the employee must be paid for any travel time that encompasses his normal workday hours.  So, for example, if the worker normally worked from 9:00 a.m. to 5:00 p.m. Monday through Friday, the employee must be paid for any time spent traveling on Sunday between 9:00 and 5:00.  (Note:  If you want to be paid for your travel time, never take the red-eye).   In the latter example, the DOL explained that the Portal-to-Portal provisions of the Fair Labor Standards Act require that employees be paid for time spent traveling between job sites.

An important note:  These determinations are fact-specific.  Before you set a course of action based on the contents of any Wage and Hour Opinion Letter, you’re best served by consulting with your attorney.  As with any fact-specific scenario, your experience may differ.