Last week, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued three new opinion letters, which we reported on briefly here. Opinion letters provide the agency’s view of the law in specific situations, as requested by employers or other parties. The letters are not legally binding but are instead intended to offer employers guidance on how the WHD interprets and would enforce the law based on the circumstances provided. These are the first WHD opinion letters released by the Trump administration. Today, we’re going to dive a little deeper into two of these letters and what they mean for employers.
What Counts as Work Time under the FLSA when Employees Travel for Work:
In this letter, an employer inquired about the compensability of travel time for hourly technicians under the Fair Labor Standards Act (“FLSA”). Three scenarios were responded to:
The first scenario involved an hourly technician who travels by plane from his/her home state to New Orleans on a Sunday for a training class beginning at 8:00a.m. on Monday at the corporate office. The class generally lasts Monday through Friday, with travel home on Friday after class is over, or, occasionally, on Saturday when Friday flights are not available.
The WHD explains that, when there is no regular workday, one permissible method of determining compensable travel time is to review the employee’s time records during the most recent month of regular employment, and, if the records reveal typical work hours, the employer may consider those as normal hours going forward. If the records do not reveal any normal working hours, the employer may choose the average start and end times of the employee’s workdays or may coordinate with the employee or the employee’s representative to negotiate and agree to a reasonable amount of time or timeframe in which travel outside of the employee’s home community is compensable.
The second scenario involved hourly technicians who travel from home to the office to get a job itinerary and then travel to the customer location. The travel time from home to the office varies depending on where the technician lives and can range from 15 minutes to 1 hour or more. All of this travel is in an assigned company vehicle.
The WHD explains that compensable worktime generally does not include time spent commuting between home and work, but that travel between job sites after arriving to work is compensable, regardless of vehicle. WHD adds that “[w]ith respect to commuting time, however, [federal] law specifies that use of a company-provided vehicle does not, alone, make an ordinary commute compensable, provided that ‘the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment…’” Beyond reciting the general rule, the WHD does not specifically answer whether or not the times indicated in the scenario are compensable or not.
The third and final scenario involves hourly technicians who drive from home to multiple different customer locations on any given day. The WHD says this time is compensable in the same manner as the second scenario presented.
Whether 15-Minute Rest Breaks Required Every Hour by an Employee’s Serious Health Condition Must Be Paid or May Be Uncompensated:
In this letter, employers had nonexempt employees covered under both the FLSA and the Family and Medical Leave Act (“FMLA”) that “required 15-minute breaks every hour due to their own continuing serious health conditions.” Employers expressed concern that taking these breaks means that these employees would be working only 6 hours in an 8-hour shift. They asked for an opinion about whether these breaks qualify as compensable time under the FLSA.
The WHD explained that although rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer, the specific FMLA-protected breaks in this situation predominantly benefit the employee and are therefore not compensable. WHD also notes that the employees who take FMLA-protected breaks must still receive as many compensable rest breaks as their coworkers receive.
COUNSEL TO MANAGEMENT:
It is important to note that these are rather specific situations and that the WHD is clear about its opinions being based exclusively on the facts and scenarios presented. It should also be noted that, in several of the scenarios, the WHD only explained the general rule without applying it to the facts presented. However, these opinions are helpful in understanding how the WHD intends to interpret and enforce the laws so that companies can avoid taking actions that will trigger DOL enforcement actions. If you have questions about compensable time under the FLSA or regarding your company’s policies regarding travel time or rest breaks, please contact the experts at The Saqui Law Group.