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U.S. Department of Labor Issues Three New Opinion Letters

On August 8, 2019, the federal Department of Labor (“DOL”) issued three opinion letters which concern the Family Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”).  The details are as follows:

FMLA2019-2-A

  • Intermittent leave to attend Committee on Special Education (“CSE”)/Individualized Education Program (“IEP”) meetings to address the educational and special medical needs of an employee’s child is protected by the FMLA.
  • A parent’s attendance at his or her child’s CSE/IEP meetings constitutes “care for a family member … with a serious health condition.”
  • This includes taking leave to arrange for medical care and/or find suitable childcare for a child with a disability.

FLSA2019-11

  • An employee who works in both a police department and a fire department of the same public agency (employer) is not entitled to overtime if his or her total hours in a 28-day period do not exceed the amount set for the “applicable maximum hours standard.”
  • Where an employee performs both “fire protection activities” for the fire department and “law enforcement activities” for the police department in the same public agency, the employee’s hours are aggregated.
  • The relevant regulatory “maximum hours standard” applicable to the employee’s eligibility for overtime is the standard for which the employee spends most of his or her aggregated time.  In other words, if the employee spends the majority of his or her time performing law enforcement duties, then the police maximum hours standard (currently, 171 hours in a 28-day work period) applies.  If, on the other hand, the employee spends the majority of his or her time performing fire protection duties, then the fire protection maximum hours standard (currently, 212 hours in a 28-day work period) applies.

FLSA2019-12

  • Individuals volunteering as “Reserve Deputies” and who perform paid “extra duty” security work for third parties do not lose their volunteer status simply because they perform the paid work.
  • An individual who volunteers for a public service agency is not an FLSA employee if (1) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the volunteer services, and (2) the volunteer services are not the same type of services which the individual is employed to perform for the public agency.
  • A volunteer’s access to paid third-party work may be construed as a “reasonable benefit” (rather than as compensation) for volunteering.
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