FLSA/FMLA and Travel-Time Opinion Letters Clarify the Law

​The U.S. Department of Labor's (DOL's) April 12 opinion letter permitting employers to not pay nonexempt workers on Family and Medical Leave Act (FMLA) breaks is the first department decision against the interests of hourly workers in a long time, according to Jerry Hathaway, an attorney with Drinker Biddle in New York City. The opinion letter highlights the overlapping application of the Fair Labor Standards Act (FLSA) and the FMLA, noted Brian Turoff and Allison Gotfried, a partner and associate (respectively) with Venable LLP in New York City, in an e-mail.

On the same day, the DOL also issued an opinion letter on how to determine when travel time is compensable for nonexempt workers who don't have regular hours. The letter provides employers with some much-needed clarification, according to Matt Disbrow, an attorney with Honigman in Detroit. In addition, the department released a fact sheet on the application of white-collar exemptions under the FLSA to jobs in higher education, noting the applicability of the teaching exemption to faculty who teach online courses.

FLSA/FMLA Letter

The main point of the FLSA/FMLA letter is that frequent breaks under the FMLA generally are noncompensable because they mainly benefit the employee, noted Sal Simao, an attorney with FordHarrison in Berkeley Heights, N.J., New York City and Washington, D.C.

Opinion Letter FLSA 2018-19 involved workers who needed 15-minute breaks every hour. In an eight-hour shift, they would perform only six hours of work.

Usually under the FLSA, hourly employees must be paid for occasional short breaks of up to 20 minutes during the workday, as such breaks are primarily for the benefit of the employer. These short breaks give employees time to reenergize, which ultimately promotes efficiency and productivity, the DOL noted. The FLSA does not require meal and rest breaks, but some states, such as California, do.

When a nonexempt employee takes frequent 15-minute breaks following a doctor's orders due to a serious health condition, such breaks are FMLA-protected accommodations exclusively for the benefit of the employee and typically are unpaid, the DOL noted.

But the employees taking FMLA breaks still must receive the same number of compensable breaks as their co-workers. So if all employees get two paid breaks per day, the workers who need additional unpaid FMLA rest breaks should receive two paid breaks, the DOL said.

"It is important that employers do not read this opinion letter too broadly," Disbrow cautioned. The opinion letter addresses a limited circumstance, he noted. "Most rest periods under 20 minutes in length still must be regarded as paid breaks."

Travel-Time Letter

Opinion Letter FLSA 2018-18, also issued April 12, focuses on how to calculate an hourly employee's "normal working hours" when he or she doesn't have a set schedule and the employer is trying to determine whether travel time is compensable, Simao said.

Travel time is usually compensable when it occurs during an employee's normal working hours. It isn't compensable if it doesn't coincide with normal working hours, he observed.

Simao explained that the DOL outlined three methods for approximating normal working hours for those who don't have them:

• Review the employee's time records during the most recent months, and if they reflect typical hours, use those hours until there is a material change in the employee's circumstances.
  

• If the records don't show a pattern, choose an average start and end time.
  

• If all else fails, the employer and employee may negotiate the employee's normal working hours to determine whether travel time is compensable.
  

However, the DOL noted that it scrutinizes claims that workers have no regular working hours. In its experience, "a review of employees' time records usually reveals work patterns sufficient to establish regular work hours," the department said.

Higher Education Fact Sheet

While cautioning that job titles alone are not enough to determine if someone fits within a white-collar exemption, the DOL's April 12 fact sheet on higher education and overtime pay under the FLSA states that a faculty member who teaches online or remotely may qualify for the exemption for teachers. This includes part-time faculty. Athletic coaches at colleges and universities also may qualify for the exemption, but not if their primary duties are recruiting.

Examples of exempt, nonteacher, learned professionals generally include certified public accountants, psychologists, certified athletic trainers and librarians. Postdoctoral fellows usually meet the learned professional exemption requirements and may fit within the teacher exemption, the fact sheet notes.

[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]

Exempt administrative employees in higher education might include admissions counselors or student financial-aid officers. Exempt, academic administrative personnel generally include department heads and academic counselors.

Deans, department heads and directors, plus some managers, might also qualify for the executive exemption.

The fact sheet also addresses typical examples of students who may have unclear employment relationships with an institution of higher education, Turoff and Gotfried noted. Only those considered to be employees are eligible for FLSA overtime exemptions.

Graduate teaching assistants who meet the relevant criteria may be exempt as employees, while research assistants and student residential assistants typically do not perform services under an employment relationship with the school and are likely not entitled to protections under the FLSA, according to the fact sheet.

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