By Tyler Freiberger,
Following a nine-year gap, in January 2018 the Department of Labor (DOL) again began releasing voluntary opinion letters in response to common or unique questions. The initial batch of released letters only reinstated opinions from 2009 that had been withdrawn for “further consideration.” So the two letters released in April of this year, and the four released last week, are the first original works of the Trump administration’s DOL’s policies.
I’ll warn you now, none of the opinion letters are exactly shocking, but they do give some indication of which way the wind is blowing. In general, the recent letters clarify some lesser used exemptions to the Fair Labor Standards Act (FLSA) and favor employers. Of the six opinions issued since April five clarify that an employee would be exempt from the FLSA or not compensated for an activity. The fact patterns these letters respond to are very limited. Still, each letter leaves breadcrumbs employers may follow in the future.
The only letter arguably in favor of employees really just tries to put travel for non-traditional work schedules into context. No surprise in DOL assertion that travel time during the normal workday, for work, is compensable. Interestingly, the agency drew from an opinion letter half a century old to state “the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.” Citing WHD Opinion Letter (March 17, 1964). While this is only in the context of employees permanently working on the road, it is still an important win for employers, whom ideally could simply contract out exactly what hours are compensable and those that are not.
The other letters are less far reaching, but in the aggregate show a trend toward chipping away at employer obligations. First, hourly employees choosing to participate in voluntary health screenings, fairs, or other wellness activities, during or outside working hours, are not entitled to pay if the employer receives no direct financial benefit. Next, employees taking frequent breaks for medical reasons under the Family and Medical Leave Act (FMLA) are only entitled to the same amount of paid breaks as their co-workers. The DOL also clarified two uncommon overtime exceptions apply to some modern businesses, mobile credit card reader salespersons, and food servers at high-end movie theaters. Lastly, the agency clarified the line between a volunteer and an employee.
While the letters do not have legal authority in a civil claim, they do indicate what activity the DOL will be hunting for in audits or investigations.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.