DOL Opinion Letters Just Keep on Coming
Director of Compliance
The U.S. Department of Labor’s Wage & Hour Division (DOL) administers and enforces numerous federal labor laws, including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). As part of its function the DOL provides employers and employees with tools they may need to understand and comply with these complicated and ever-changing laws. One of the most helpful tools the DOL offers to the public to guide them toward compliance with federal labor laws are opinion letters.
An opinion letter is an official, written response by the DOL to a letter submitted by an employer, employee, or other entity requesting an opinion on how the FLSA, FMLA, or other federal law applies to a given set of facts. Especially notable about DOL opinion letters is that employers can rely on them as a good faith defense against employee claims arising under the FLSA, FMLA, or other law. Below are examples of recent opinion letters issued by the DOL:
The FMLA entitles eligible employees to take unpaid, job-protected leave to provide physical and psychological care to covered family members with a serious health condition. Under this reasoning, the DOL opined that employees may take intermittent FMLA leave to attend a Committee on Special Education meeting to discuss the Individualized Education Program of a child with a serious health condition because the school-related meeting constitutes care for a family member.
The DOL concluded that an employer is responsible in all circumstances for designating leave as FMLA-qualifying and may not delay the designation or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. And once an eligible employee communicates a need to take FMLA leave for a qualifying reason, neither the employee nor the employer may decline FMLA protections for that reason. In other words, the law does not permit employees to use non-FMLA leave (e.g. ordinary sick leave) for an absence covered by the FMLA in order to preserve the FMLA leave for future use.
Eligible employees are entitled to take FMLA leave for their own serious health condition that renders them unable to perform the functions of their job. The DOL concluded that employees who voluntarily donate a body organ solely to improve someone else’s health can qualify for FMLA leave if the donation involves inpatient care for the employee or continuing treatment by a health care provider, even if the employee was in good health before the donation.
The DOL stated that under the FLSA it is their policy to accept employer time rounding practices to the nearest five minutes, one-tenth of an hour, one-quarter of an hour, or one-half hour if the rounding averages out to pay employees for all hours worked. In this opinion letter, the DOL found an employer’s rounding practice compliant with the FLSA and Service Contract Act because it is neutral on its face and averages out to pay employees for all time worked.
The DOL opined that an employee’s time spent participating in an employer’s volunteer community service program outside of normal working hours does not count as hours worked under the FLSA, if the employer does not unduly pressure its employees to participate.
Although the DOL has issued more than 40 opinion letters during the Trump Administration, these letters only apply to the specific circumstances described by the entity requesting the opinion and therefore do not answer all compliance questions for employers. Employers still need to consult legal counsel or employ a workforce management software solution to ensure compliance with broad federal and state employment laws. Nevertheless, DOL opinion letters are a valuable resource employers can use to better grasp the fine points of laws such as the FMLA and FLSA and possibly avoid the hefty fines and costs associated with non-compliance. Those wishing to request or find an opinion letter can go to https://www.dol.gov/whd/opinion/ (as of 8/27/2019).
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