Labor Department issues six new opinions and establishes Office of Compliance Initiatives

Posted by Charles Middleton on 09/12/2018

Q: The U.S. Department of Labor recently released some compliance assistance materials. What was included?

A: Yes, on Aug. 28, the Labor Department issued six new opinion letters — four regarding the Fair Labor Standards Act (FLSA) and two regarding the Family Medical Leave Act (FMLA). The Labor Department has been very active with opinion letters since reviving the program last year. So far this year, the agency has issued or reissued more than two dozen opinion letters. According to the agency, the opinion letters “show the ongoing efforts of the department to provide the tools employers need to comply with the law and protect workers.”

Q: What guidance is provided in the new Fair Labor Standards Act opinion letters?

A: In FLSA2018-20, the Labor Department addressed whether an employee's voluntary participation in biometric screenings, wellness activities, and benefits fairs constitutes compensable worktime under the Fair Labor Standards Act. The agency determined that such participation does not constitute compensable worktime because the activities predominantly benefit the employee, not the employer, and constitute “off-duty” time, regardless of whether the activities occur on-site or during regular working hours.

In FLSA2018-21, the agency examined whether a company that sells a technology payment platform to other businesses meets the definition of a “retail or service establishment” for purposes of the commissioned sales employee overtime exemption in Section 7(i) of the Fair Labor Standards Act. Departing from past guidance, the agency concluded that the company constitutes a “retail or service establishment,” even though its customers and end-users are predominantly commercial entities, because the company's sales are primarily retail, not wholesale, and the company's technology platform is not resold. As a result, the agency determined that the Section 7(i) exemption applies to any of the company's commissioned sales employees who receive the requisite pay and commissions.

In FLSA2018-22, the Labor Department decided that examination graders who travel once a year to grade credentialing exams administered by a nonprofit organization qualify as volunteers rather than employees, and the nonprofit can pay for the graders' travel expenses without negating their volunteer status.

In FLSA2018-23, the agency clarified that the motion picture theater exemption in 29 U.S.C. § 213(b)(27) applies to employees of food service operations that are “functionally integrated” with theater operations. In determining “functional integration,” the agency considered whether the food services and theater operations were a “single unit,” and whether the food service employees also worked as ushers and cashiers.

Q: What is covered in the two new Family Medical Leave Act opinion letters?

A: In FMLA2018-1-A, the Labor Department examined whether an employer's no-fault attendance policy violates the Family Medical Leave Act (FMLA). The employer's policy effectively freezes, throughout the duration of an employee's FMLA leave, the number of attendance points that the employee accrued before taking his or her leave. The agency decided that, “as long as employees on equivalent types of leave receive the same treatment,” the employer's policy does not violate the FMLA because “[a]n employee neither loses a benefit that accrued before taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled.” The agency noted: “[I]f the employer, however, counts equivalent types of leave as ‘active service' under the no-fault attendance policy — meaning the employer counts such leave toward the twelve months necessary to remove points — then the employer may be unlawfully discriminating against employees who take FMLA leave.”

In FMLA2018-2-A, the agency clarified that an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else's health.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, September 11, 2018