DOL Issues Three New Opinion Letters Concerning FMLA and FLSA

By: Jessica Jackler

The U.S. Department of Labor’s (DOL) Wage and Hour Division has issued three new opinion letters that address compliance issues related to the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).

An opinion letter is an official, written opinion by the DOL on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter. Opinion letters issued by the DOL may be relied upon as a good-faith defense to wage claims arising under the FLSA.

The opinion letters issued March 14 are summarized below:

  • FMLA2019-1-A discusses whether an employer may delay designating paid leave as FMLA leave or permit employers to expand their FMLA leave beyond the statutory 12-week entitlement. The DOL opined that that an employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave as FMLA leave. Therefore, if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his/her 12-week entitlement and does not expand that entitlement. It notes, however, that there is nothing in the FMLA that prevents employers from adopting more generous leave policies than those required by the law, but an employer may not designate more than 12 weeks of leave as FMLA-protected.
  • FLSA2019-1 clarifies FLSA wage and recordkeeping requirements for residential janitors and the “good faith” defense. The main issues presented to the DOL concerned: 1) whether the FLSA guarantees minimum wage and overtime pay to residential janitors despite their exemption from similar state law requirements; and 2) whether an employer’s noncompliance with the FLSA in reliance on a state law exemption demonstrates “good faith,” allowing the employer to avoid liquidated damages or the FLSA’s three-year back wage liability period. The DOL explained that it does not believe relying on a state law exemption from state law minimum wage and overtime requirements is a good faith defense to non-compliance with the FLSA, but a court has discretion to make that determination on a case-by-case basis. When a federal, state or local minimum wage or overtime law differs from the FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest protection. Based on the facts presented here, the DOL also reasoned that the FLSA does not specifically include an exemption for residential janitors or similar employees.
  • FLSA2019-2 addresses FLSA compliance related to the compensability of time spent participating in an employer-sponsored community service program. Specifically, whether employees who spent time participating in the employer’s optional volunteer program qualifies as hours worked under the FSLA. The facts presented to the DOL confirmed that employees’ participation in the program was charitable and voluntary, the employees were not required to participate and the employer did not control or direct the work. There also did not appear to be any adverse consequences if employees chose not to participate in the volunteer activities. Although there was the possibility of a monetary reward to the group with the most community impact, it was not guaranteed that all participating employees would receive a bonus for their volunteer work. As such, the DOL concluded that the employees’ time spent volunteering was not compensable work under the FLSA.

Practice Tip: Although these opinion letters are fact-specific, they provide helpful, general guidelines for employers facing similar issues, especially FMLA2019-1-A concerning universal FMLA leave requirements. If you have any questions about the application of these opinions in your own practice, please contact us.

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