DOL Issues Opinion Letters on Rest Breaks, Travel Time and Garnishments
Author: Michael Cardman, XpertHR Legal Editor
April 17, 2018
The US Department of Labor (DOL) recently issued three new opinion letters, the first in nearly a decade since the Obama administration abandoned the longstanding practice in 2010.
The opinion letters address:
- The compensability of certain travel time under the Fair Labor Standards Act (FLSA);
- The compensability of certain rest breaks under the FLSA; and
- Lump-sum payments and "earnings" under the garnishment provisions of the Consumer Credit Protection Act (CCPA).
An opinion letter is an official, written opinion from the DOL's Wage and Hour Division (WHD) describing how a particular law applies to specific circumstances. If an employer requests an opinion letter from the WHD, provides it with all the pertinent facts regarding its particular situation, receives an opinion letter from the WHD and then follows the opinion letter in good faith, it will be shielded from liability for any minimum wage and/or overtime violations involving the practices described in its letter.
Even if they had not requested an opinion letter themselves, other employers that have identical fact patterns also can be shielded from liability if they follow an opinion letter. However, an employer should exercise caution before relying on another employer's opinion letter because any variation in the fact pattern can nullify its defense.
Methods for Ascertaining Travel Time by Employees Without Regular Working Hours
The first opinion letter, FLSA 2018-18, concerns time spent by employees on overnight travel.
An FLSA regulation states that travel that keeps an employee away from home overnight must be counted as compensable working hours if it "cuts across the employee's workday" because the employee is simply substituting travel for other duties. Employees must be paid for time spent traveling not only on regular working days during normal working hours but also during the corresponding hours on nonworking days. For example, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours counts as hours worked on Saturday and Sunday as well as on the other days. However, the DOL will not consider time spent in travel away from home outside of regular working hours as compensable hours worked.
The employer requesting the opinion letter employs technicians who have no fixed daily schedule and often work between eight and 12 hours per day.
The DOL outlined three methods that the employer could use to reasonably find out an employee's normal work hours for purposes of determining compensable travel time. It also addressed the compensability of two additional scenarios involving employee commutes.
Frequent Rest Breaks Required by a "Serious Health Condition" Are Not Compensable
The second opinion letter, FLSA 2018-19, involves employees who require 15-minute breaks every hour due to health conditions that qualify as "serious health conditions" under the Family and Medical Leave Act (FMLA). As a result, these employees typically perform only six hours of work during each eight-hour shift.
As the DOL observed, an employer generally must pay employees for short rest breaks of up to 20 minutes in length because they primarily benefit the employer.
However, the DOL said the specific FMLA-protected breaks described in the letter differ significantly from ordinary rest breaks. Because the breaks are given solely to accommodate the employees' serious health conditions, they predominantly benefit the employees and therefore do not count as hours worked for which the employees must be paid.
Nevertheless, employees who take FMLA-protected breaks must receive as many paid rest breaks as their coworkers receive, the DOL noted.
Certain Lump-Sum Payments Are "Earnings" Subject to Garnishment Limits Under the CCPA
The third opinion letter, CCPA2018-1NA, addresses whether certain lump-sum payments qualify as earnings under Title III of the CCPA, in which case they would be subject to the CCPA withholding limits on the amount of earnings that may be garnished for child support.
Lump-sum payments made in exchange for personal services rendered are earnings subject to the CCPA limits, the DOL said. On the other hand, lump-sum payments that are not related to personal services rendered are not earnings under the CCPA and therefore not subject to the CCPA limits.
Based on this rule, it opined that several types of lump-sum payments qualify as earnings subject to CCPA limits, including:
- Bonuses; and
- Severance pay.
Meanwhile, three other types of lump-sum payments do not:
- Workers' compensation payments for medical reimbursements;
- Wrongful termination insurance for compensatory or punitive damages; and
- Buybacks of company shares.