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Three New Opinion Letters provide Insight into Department of Labor’s Policies

Aug 2, 2018 12:39:21 PM

After a nine year hiatus, the Department of Labor (DOL) has released a new set of Opinion Letters. These letters aim to answer questions from employers that may be unclear, or undefined on a particular situation, based on the appropriate federal laws. These letters are not laws in and of themselves, but rather reinforcements of the DOL’s current policies and positions with regards to the issue being questioned. The three letters released earlier this year are regarding: The Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Consumer Credit Protection Act (CCPA).

The First Opinion Letter “FLSA 2018-18 – When Is Employee Travel Time Compensable?” explains different scenarios regarding non-exempt employees being compensated for travel time.

The first scenario is addressed based on an employer’s concerns that, due to an employee’s fluctuating schedule, they were unable to determine “normal working hours” for said employee. The DOL laid out the scenario as, “an employee with an ever-changing work schedule travels on Sunday evening by airplane to attend company training beginning on the following morning”. The DOL’s response involved pointing out how, generally, compensable worktime does not include time spent commuting to or from their job. That being said, if an employee is traveling in the course of employment, their travel time is compensable so long as the travel time is within the employee’s normal working hours, which also includes weekends even if the employee does not normally work weekends. Travel is also non-compensable if the employee is traveling outside their standard working hours, “as a passenger on an airplane, train, boat, bus, or automobile.”

To further their point, the DOL explained that in the case of the situation above, the employer would review the employee’s time spent working from the previous month, and apply that as “normal working hours” for the current month in question, even if the hours do vary. The employer could also set the employee’s start and end times themselves, considering those to be the employee’s work hours for this situation. Finally, the employer and employee may come together to discuss and agree upon an acceptable amount of time that traveling for work is compensable.

The DOL also answers the question of an employee working a remote location being compensated for travel time spent between the remote location and the employee’s hotel or lodging. Their answer was that the situation should be treated the same as travel between an employee’s work-to-home travel which is non-compensable.

Finally, the DOL addressed a scenario in which hourly technicians used a company vehicle to travel from their homes, to the office, and then to several remote job sites. Should those technicians be compensated for the time spent traveling from their homes to different job sites? The DOL’s answered that generally, employees are not compensated for time spent traveling from home-to-work even when an employee is working different job sites. However, the employee’s travel to and from the different job sites can be compensated.

The DOL’s Second Opinion Letter “FLSA 2018-19 - Must 15-minute Rest Breaks Required Every Hour by an Employee’s Serious Health Condition be Compensated?” goes over whether or not breaks covered under the FMLA due to serious health conditions are able to be compensated under the FLSA.

For this scenario the DOL puts forth what they consider as compensable or non-compensable break times in the workplace is dependent on, “[w]hether [the time] is spent predominantly for the employer’s benefit or for the employee’s.” They note that short 20-minute breaks can be beneficial to the employer since they promote efficiency in their employees, but several “accommodation breaks” during the workday, benefit the employee and are not compensable. In short, if an employee needs many breaks per-day due to medical issues the employer is not required to compensate the employee under the FMLA.

The Third and final Opinion Letter, “CCPA 2018-1NA – Which Lump-Sum Payments to Employees are Considered “Earnings” for Garnishment Purposes Subject to Limitation by the Consumer Credit Protection Act?” comes from uncertainty state-to-state on which types of payments the CCPA garnishment limits apply to, and whether or not those garnishments can be applied to lump-sum payments to the employees. For some background, the CCPA, “provides limitations on amounts that can be garnished from payments made to employees and is enforced by the DOL.”

First, the DOL explains that the CCPA defines earnings as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.” I.e. to determine whether or not payment is covered by the CCPA is, “whether the payment is for services provided by the employee, rather than the frequency of the payment.”

The lump-sum payments that are classified as earnings under the CCPA include: commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit-sharing, referral or sign-on bonuses, moving or relocation incentive payments, attendance service, safety awards, cash awards, retroactive merit pay increases, holiday pay, termination pay, signing bonuses, and severance pay. Furthermore, the following lump-sum payments may only be partially subjectable to the CCPA: workers’ compensation payments that are not attributable to reimbursement for medical expenses and the back- or unpaid wage portion of any settlement with an employee.

The frequency of lump-sum payments to employees is not indicative of whether or not they are applicable to the CCPA, but whether or not those lump-sums are classified as earnings. Are the lump-sum payments being given to an employee in exchange for the employee providing some sort of value to the employer? So long as they fall into one of the categories listed above, they are considered earnings.

As an employer, these Opinion Letters can provide valuable insight into how to handle specific situations that can be encountered in the workplace. So far this year the DOL has provided numerous Opinion Letters ranging on a variety of subjects related to maintaining compliance in the workplace. You can read them all for yourself, in addition to the numerous other letters from nine years ago, by clicking HERE.

 

 

Bibliography

Baratt, J. H. (2018, April 16). U.S. DOL Issues Three Opinion Letters After Nine-Year Hiatus. Retrieved from Epstein Becker Green: https://www.wagehourblog.com/2018/04/articles/dol-enforcement/u-s-dol-issues-three-opinion-letters-after-nine-year-hiatus/

Taylor, J. B. (2018). Department of Labor Releases Three New Opinion Letters. Retrieved from HR Professionals Magazine : http://hrprofessionalsmagazine.com/department-of-labor-releases-three-new-opinion-letters/

United States Department of Labor. (2018). Opinion Letters - Fair Labor Standards Act. Retrieved from United States Department of Labor: https://www.dol.gov/whd/opinion/flsa.htm

 

 

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