April marks the first opinion letters from President Trump’s Department of Labor Wage and Hour Division, the first newly issued letters in almost ten years. After announcing the return to opinion letters from the Obama-era practice of Administrator Interpretations, the White House reinstated several opinion letters on January 5th that did not get mailed during the final days of the Bush administration. This return has spark a lot of debate, so here are the highlights.
What is an Opinion Letter?
An opinion letter is a system of question and answer with the Wage and Hour Division (WHD). Employers and employee groups can submit wage and hour compliance questions and then WHD responds with a letter. These letters are generally preferred by employers as they are often used in court to defend wage and hour litigations, while employee groups disapprove of their use due to the ability of employers to manipulate the outcome of an opinion letter with targeted questions, and allegedly lobby to get their questions pushed to the top of stack.
Obama’s DOL Difference
In a move to address the imperfect nature of opinion letters, President Obama created Administrator Interpretations, which were much broader in their scope to avoid loopholes via specific wording. Employers were upset because:
- They were not able to use these interpretations as a defense in court due to their generalized scope
- The interpretations topics were generated by the wage and hour division to address overall themes – rather than answering specific questions
- There were significantly less guidelines put out over the course of 8 years
Employer and employee groups’ defamation aside, both systems are arguably flawed. With opinion letters at the reins though we encourage you to decide for yourself and read the specific wording. For the sake of your time though here are the details you need to know about these new rulings.
FLSA Travel Compensation
The two letters release on April 12, 2018 address compliance under the Fair Labor Standards Act.
FLSA2018-18 addresses compensable work travel time: What types of travel time are compensable as work time?
The letter explores three scenarios of work related travel:
- Travel from home to job site – the commute
- Travel from job site to job site
- Long distance plane travel
Citing the Portal-to-Portal Act, the letter clarifies that employers do not need to compensate employees for their commute as specified in the act. This is further precedented by FLSA regulations that define a standard commute as not worktime, no matter if the employee works at a fixed location or different job sites.
Outside of the standard commute though, travel time between job site during the work day must be compensated as work hours.
Finally, the letter address plane and overnight travel that takes an employee from their home community. In these circumstances, as it is required by the employer, this travel is in place of regular duties and thus work hours that need to be compensated.
But how does this translate to weekend hours when it can’t be claimed to be in place of work?
The letter determines that an employee’s standard work hours can carry over to the weekend. That is, if an employee generally works 9 am to 5 pm every week day, then travel between 9 am and 5 pm on a week end is considered compensable, while travel outside of those hours is not compensable.
Yet, despite all this the Wage and Hour Division does not consider time spent as a passenger as worktime. In a confusing back-and-forth of ‘ifs’ and buts’, the letter established that overnight or plane travel is only compensable if the employee is not a passenger.
The second letter, FLSA2018-19 responds to a question about frequent FMLA covered breaks: Are these breaks compensable or non-compensable under FLSA?
This grey area between FLMA and FLSA is an interesting issue. As the opinion state that due to the nature of the breaks, as benefiting the employee rather than a break that benefits the employer and are thus not compensable as supported by case law and supreme court regulations.
Constant Compliance Coverage
Keeping up with the barrage of national and state rulings can make staying compliant a nightmare, especially if you have locations across multiple states. Changes can be made almost weekly, daily, or worse even retroactively making things more complicated than ever.
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