Labor Department issues guidance on breaks, travel time and garnishments

Posted by Charles Middleton on 05/01/2018

Q: Last year, the U.S. Department of Labor (DOL) announced it would resume its opinion letter program. What's the significance of this?

A: Opinion letters, which serve as an official statement on DOL policy, are a valuable resource for employers in determining how to comply with the federal laws and regulations the agency enforces. Not only do they discuss how a specific law applies to a certain set of facts presented by the requester, but they can also be relied upon as a good faith defense to wage claims arising under the Fair Labor Standards Act. Moreover, they can be relied upon as official guidance for other employers subject to the FLSA and Family and Medical Leave Act. This practice of issuing opinion letters ceased in 2010, but last summer, the U.S. Secretary of Labor announced that the agency would resume this long-standing practice. Just last week, the DOL issued three letters regarding the compensability of breaks, travel time by nonexempt employees, and earnings subject to garnishments.

Q: What new guidance has been issued regarding the compensability of break time for employees requiring intermittent FMLA leave?

A: On April 12, the Department of Labor issued an opinion letter that clarifies that 15-minute rest breaks given to an employee to accommodate an employee's serious health condition are not compensable. In general, employers are required to pay for breaks that are 20 minutes or less. The logic behind this is that short breaks are typically for the benefit of the employer. However, when the employee requires a break for their own serious health condition (as certified by a doctor and qualifying for intermittent Family and Medical Leave Act leave), the break is for the employee's benefit and does not need to be paid. Employers should be aware that employees receiving unpaid FMLA-protected breaks still must receive as many paid rest breaks as co-workers who do not need any accommodation.

Q: What stance is the DOL taking as it pertains to the compensability of travel time by nonexempt employees?

A: The agency's April 12 opinion letter regarding travel time reinforced the DOL's rules concerning when travel is and is not compensable under the FLSA. As has always been the case, employees' time spent commuting from their home (or hotel in the event of an employee who is traveling for work) isn't compensable as time worked. However, when employees travel for work (outside regular commuting to or from the office or directly from home to a customer's place of business), they are entitled to be compensated for all time spent in travel during normal hours of work. The April 12 letter answers the vexing question about what is considered normal work hours for employees with irregular schedules. The letter provides two options for employers in determining normal working hours: employers may review the employee's most recent monthly time records to determine if a pattern exists sufficient to establish regular working hours; or employers may negotiate with the employee and come to an agreement about what comprises the regular work day.

Q: Another opinion letter addressed the issue of wage garnishment limitations. Tell us about that.

A: Title III of the Consumer Credit Protection Act limits the amount of an individual's disposable earnings that may be garnished. The DOL provided analysis on 18 different types of lump sum payments and discussed whether they qualified as earnings. Earnings under the act can include payments received in a lump sum when the payment is made for services provided by the employee. The DOL found that commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit sharing, referral or sign-on bonuses, moving or relocation incentive payments, attendance awards, safety awards, cash service awards, retroactive merit increases, payment for working during a holiday, termination pay, and severance pay would qualify as earnings under the Consumer Credit Protection Act. The DOL also found that certain portions of workers' compensation payments and insurance settlements could qualify as earnings but that other portions, such as reimbursement for medical expenses, would not qualify as earnings. Finally, the DOL determined that the buyback of company shares does not qualify as earnings.

Q: The DOL also recently issued a fact sheet that identifies positions at higher education institutions that qualify for white collar exemptions. Which ones are they?

A: Fact Sheet 17(s): Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act identified the following positions as typically exempt under the Fair Labor Standards Act: part-time teachers; teachers who teach online or remotely; teachers who spend a “considerable amount of time” in extracurricular activities (such as supervising student clubs); and athletic coaches (so long as the majority of the coach's time is not spent recruiting). The following positions were determined to be exempt under the “learned professional exemption:” public accountants; psychologists; certified athletic trainers; librarians; and postdoctoral fellows. The fact sheet identified several positions exempt under the administrative exemption: admissions counselors; student financial aid officers; department heads; intervention specialists; and academic counselors. Additionally, higher education institutions can apply the executive exemption to deans, department heads, directors, and other similar employees. Finally, the fact sheet discussed student employees and found that while graduate teaching assistants qualified for the teacher exemption, research assistants and student residential assistants are typically not considered employees under the Fair Labor Standards Act.


Published by The Oklahoman, May 1, 2018