By: George Morrison
On April 12, 2018, the United States Department of Labor (DOL) issued its first substantive opinion letters since the Bush Administration. Not only do opinion letters clarify the agency’s application of the law, the letters also can sometimes provide a complete defense to claims if an employer acts in conformity with and reliance on a letter.
The first opinion letter, FLSA2018-18, addresses a long-standing issue: for employees with irregular schedules, how should employers calculate their “normal working hours” during which they must be paid when travel requires an overnight stay? According to the letter, employers may use two different methods: (1) review the employee’s time records during the most recent month of regular employment and use the average start/end times during that time period; or (2) negotiate with the employee and agree as to what constitutes the employee’s work hours. The second letter, FLSA2018-19, clarifies that rest breaks given by an employer to accommodate an employee’s serious health condition predominantly benefit the employee and, therefore, are not compensable. Finally, under the third letter, CCPA2018-1NA, the DOL opined that portions of lump-sum payments for workers’ compensation, insurance settlements for wrongful termination and buybacks of company shares do not constitute “earnings” for purposes of garnishments under Title III of the Consumer Credit Protection Act.
These letters, as well as the DOL’s newly announced Payroll Audit Independent Determination program, as summarized in our March 12, 2018 Labor and Employment Alert, signal a shift within the DOL to provide employers with much needed assistance and guidance for complying with wage and hour laws. We will continue to monitor any future developments on behalf of our clients.