The Busy Bees At The Department Of Labor

By: Steven J. Whitehead

March 18, 2019

One of the more helpful aspects of the change in administrations is the resumption of the United States Department of Labor’s (“DOL”) use of Opinion Letters to provide guidance to employers. DOL has already issued important guidance regarding the retail sales exemption under the Fair Labor Standards Act (“FLSA”). On March 14, 2019, DOL issued two Opinion Letters that provide helpful instruction on aspects of both the FLSA and the Family and Medical Leave Act (“FMLA”).

FMLA Opinion Letter

A common question asked by employers is whether it must count an employee’s absence as qualified FMLA leave when the employee is using paid time off and whether it may grant an employee 12 weeks of unpaid FMLA on top of any paid time off the employee has taken for an FMLA qualified absence. In FMLA 2019-1-A, DOL opined that an employer “may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.” DOL noted that the FMLA requires employers to recognize leave as covered by the FMLA “[o]nce an eligible employee communicates a need to take leave for an FMLA-qualifying reason” and that “neither the employee nor the employer may decline FMLA protection for leave.” Thus, even if the employee prefers to postpone or delay the designation of leave to be classified as FMLA leave, the employer must provide notice that the leave falls within the FMLA once it has sufficient information to determine that the leave is FMLA-qualifying. The employer must also count the leave against the 12 weeks (or, as applicable, 26 weeks) of FMLA leave allotment. As DOL put it, “if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26 week) FMLA entitlement and does not expand that entitlement.”

FLSA Opinion Letter

Another common question is whether the time employees spend doing charitable work under a company program that encourages such civic activity must be considered compensable time under the FLSA. In FLSA 2019-2, DOL opined that such time is not compensable where the employees are not coerced to do so. Thus, where an employer encourages but does not require employees to volunteer, and even sponsors the volunteer programs, it need not compensate those employees who participate, provided there is no impact on the terms and conditions of the employee’s employment. This conclusion did not change even though the employer in this circumstance gave certain discretionary (but not guaranteed) bonuses to those employees who volunteered. The FLSA Opinion Letter makes clear that “Congress did not intend for the FLSA ‘to discourage or impede volunteer activities,’ but rather to ‘prevent manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.’” DOL also approved the employer’s use of a mobile application to track employee’s volunteer hours in order to determine bonus awards so long as the employer does not use the application “to control or direct the employee’s activities by, for example, giving specific instructions about what volunteer work he or she should do, or how he or she should do it.”

It is refreshing to see a DOL that is trying to facilitate employer’s efforts to comply with the law as opposed to hiding the ball or doing nothing. Expect to see more guidance that is helpful from the busy bees at DOL.

Disclaimer – The information in this law alert is for informational purposes only and does not constitute legal advice. No attorney-client relationship has been or will be formed by any communication(s) to, from or with the law alert or author. The opinions expressed are those of the author, and decisions relating to the content belong to the author.

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