Update: Series on Department of Labor’s April 2018 Opinion Letters on Wage and Hour Compliance: Part II—Department States that FMLA Rest Breaks for Hourly Employees are Generally Not Compensable Time under the FLSA

Friday, June 8th, 2018 at 12:10 pm

     

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Introduction

     This is the second post in a three-part series, all addressing recent updates in April 2018, from the Department of Labor. Our first blog in the series addressed wage and hour compliance for non-exempt status employees while those employees are traveling. This post addresses a second DOL opinion letter issued on April 12, 2018 that specifically deals with compliance advice regarding wage and hour calculations at it relates to employees that are entitled to rest breaks because of an FMLA-qualifying condition.

See DOL, Opn. Letter FLSA-2018-19 (April 12, 2018), https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf

DOL’s April 12, 2018 FMLA Opinion Letter

     The DOL letter specifically addresses the question of whether an hourly employee’s 15-minute rest breaks are compensable time under the Fair Labor Standards Act (“FLSA”) when the rest breaks are covered under the FMLA (Family Medical Leave Act) because the breaks are certified by a healthcare provider as being necessary. The letter sought to provide guidance relating to employers that had several non-exempt employees with FMLA certifications that provided for 15-minute rest breaks every hour due to a medical condition. Thus, for the employers at issue in the DOL opinion letter, each of the subject employees would ultimately only work 6 hours in an 8-hour shift. So, it is certainly important that the employers accurately account for that 2 hours per day for purposes of wage and hour compliance. Those 2 hours would add up very quickly in terms of a year’s worth of calculations relating to noncompliance. Thus, it is very helpful that the DOL has weighed-in on this compliance question.

     The rationale in the DOL’s opinion letter focuses on who receives the primary benefit of the rest breaks at issue. In the letter, the DOL explained that the 15-minute breaks are provided only as an accommodation for the employee’s health condition, rather than other types of breaks that may benefit employers with increased worker productivity. In its rationale, the DOL stated that because the 15-minute rest breaks are for the FMLA-qualifying employees solely for the employees’ benefit—the breaks are not compensable for purposes of wage and hour compliance under the FLSA.

Employer Takeaways

     The second DOL opinion letter from April 12, 2018 is fairly straightforward in providing that FMLA-related employee rest breaks should generally be treated as non-compensable time under the FLSA. But, because the DOL’s rationale in the letter focuses on whether the benefit is to the employer or the employee, employers should give some to that factor when granting FMLA-related rest breaks. Accordingly, when granting FMLA rest breaks, employers should likely consider documenting that the rest break is being offered solely as an accommodation for the employee’s benefit to reinforce compliance with the DOL’s analysis. But, of course, each situation is different, and we would always advise that employers discuss these issues with legal counsel before putting a plan in place.

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