During the Obama administration, the DOL stopped providing opinion letters in favor of adopting “Administrator Interpretations.” But, now they are back.
In January, the DOL reissued 17 previously withdrawn opinion letters; and last week, the U.S. Department of Labor (DOL) issued two opinion letters – the first since 2009.
Opinion letters can be a great benefit to employers. First, they address specific questions submitted to the DOL by employers and provide important compliance guidance. It is essentially the DOL and Wage and Hour Division (WHD) providing employers with guidance on how they believe employers should be complying with the laws.
Second, opinion letters can provide an affirmative defense to employers in litigation. In order to take advantage of the affirmative defense, the opinion letter must fully outline the facts involved in its opinions and explain and justify its interpretations. The employer must also show that their acts conformed with opinion letter’s guidance.
So What Do These Opinion Letters Say?
The first letter addresses whether a request for FMLA that includes a 15-minute break provided each hour due to a continuing a serious health condition, must be paid. The DOL noted that although short rest breaks up to 20 minutes in length are ordinarily compensable, because the FMLA-protected breaks are given to accommodate the
employee’s serious health condition, the breaks predominantly benefit the employee and need not be paid. The DOL concluded that employees covered by the FMLA must, however, receive the same number of paid breaks as their peers.
In the second letter, the Wage and Hour Division (WHD) addressed travel time for non-exempt employees who travel on the weekend. The letter focuses on how to determine travel time pay for employees who have no regular work schedule.